Citation Nr: 18144181 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 11-16 330 DATE: October 24, 2018 ORDER Service connection for a chronic disability manifested by weak spells and dizziness is granted. Service connection for a chronic disability manifested by essential tremors is granted. FINDINGS OF FACT 1. A chronic disability manifested by weak spells and dizziness had its onset in service. 2. A chronic disability manifested by essential tremors had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic disability manifested by weak spells and dizziness have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), (b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a chronic disability manifested by essential tremors have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), (b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1970 to March 1972, including service in the Republic of Vietnam from January 1971 to December 1971. He also received various decorations evidencing combat including the Combat Infantryman Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied service connection for a chronic disability to account for weak spells and for a chronic disability to account for head and hand tremors, to include Parkinson’s disease (listed as head and hand tremors, claimed as shaking). In December 2015, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In January 2016 and February 2017, the Board remanded the issues of entitlement to service connection for a chronic disability to account for weak spells and entitlement to service connection for a chronic disability to account for head and hand tremors, to include Parkinson’s disease, for further development. In November 2017, the Board requested a Veterans Health Administration (VHA) opinion, as to the issues of entitlement to service connection for a chronic disability to account for weak spells and entitlement to service connection for a chronic disability to account for head and hand tremors, to include Parkinson’s disease, and the VHA opinion was obtained in January 2018. In May 2018, the Veteran was provided with a copy of the January 2018 VHA opinion, as to those issues. The Veteran did not submit any additional argument or evidence in support of his appeal. The issues have been recharacterized to comport with the evidence of record. Chronic Disability to Account for Weak Spells and a Chronic Disability to Account for Head and Hand Tremors, to include Parkinson’s Disease Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) (West 2014) and its implementing regulation, 38 C.F.R. § 3.304(d) (2017), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran is service-connected for posttraumatic stress disorder (PTSD) and for diabetes mellitus. He is also service-connected for peripheral neuropathy of the right upper extremity; peripheral neuropathy of the left upper extremity; peripheral neuropathy of the right lower extremity, sciatic nerve; peripheral neuropathy of the right lower extremity, femoral nerve; peripheral neuropathy of the left lower extremity, sciatic nerve; peripheral neuropathy of the left lower extremity, femoral nerve; diabetic retinopathy; and for left breast gynecomastia. The Veteran contends that he has a chronic disability to account for weak spells, and a chronic disability to account for head and hand tremors that are related to service. He specifically maintains that his weak spells are a manifestation of his diabetes mellitus and that they are caused by exposure to Agent Orange. He also reports that he was treated for dizziness and weak spells during service and that those conditions began while he was in service. The Veteran further indicates that he suffered a head injury when he fell into foxhole during service and that he also believes that his head and hand tremors are due to Agent Orange exposure. He indicates that family members noticed his tremors after his period of service. The Veteran served on active duty in the Army from August 1970 to March 1972, including service in the Republic of Vietnam from January 1971 to December 1971. He also received various decorations evidencing combat including the Combat Infantryman Badge. Therefore, exposure to Agent Orange is conceded. The service treatment records show treatment for dizziness and for headaches, but not specifically for weak spells. Such records also do not specifically show treatment for tremors or for a head injury. A January 1971 treatment entry notes that the Veteran complained of a headache. The diagnosis was a headache. A July 1971 consultation report notes that the Veteran presented with dizziness and headaches of about six weeks duration. The Veteran reported that the dizziness and headaches appeared to be worse while he exerted himself. It was noted that the Veteran’s blood pressure readings were 130/90 in the right arm and 130/86 in the left arm. The impression was headaches of an unknown etiology. The examiner stated that the Veteran may well have labile hypertension, but that he doubted its significance in the etiology of the headaches. A February 1972 consultation report indicates that the Veteran was noted to have a blood pressure reading of 150/98 in the Republic of Vietnam and that he was sent to a medical clinic where his blood pressure reading was 130/90. The Veteran indicated that he had frequent dizziness in the morning which was relieved with lying down for a few minutes. The Veteran’s blood pressure readings, at that time, were 120/80, lying down; 130/90 sitting; and 130/98, standing. The impression was possible labile hypertension, with his blood pressure okay at that time. A February 1972 separation examination report includes a notation that the Veteran reported that he had headaches and dizzy spells. His blood pressure reading was 112/72. The examiner indicated that the Veteran had intermittent hypertensive headaches and dizziness, with a blood pressure reading of 118/90. There was a notation that the Veteran’s neurological evaluation was normal. Post-service private and VA treatment records, including VA examination reports, show treatment for complaints of weak spells and dizziness, and for variously diagnosed tremors, including a tremor, not elsewhere classified; tremors/ataxia and possible Parkinson’ disease; and essential tremors. Such records do not show treatment for, or diagnoses of, Parkinson’s Disease. A July 1972 VA general examination report, performed within six months of the Veteran’s separation from service, notes that he reported that when he was in basic training, he fell in a fox hole, which caused left hip pain and frequent headaches. The Veteran also stated that while carrying a backpack overseas, he suffered from weak spells and dizziness. He indicated that he currently had a constant headache. The examiner reported that the Veteran’s blood pressure reading was 110/80. The diagnosis did not specifically include headaches, weak spells, or tremors. The examiner indicated that he was unable to determine any organic cause for the Veteran’s headaches. It was noted that the headaches were bitemporal and that the Veteran stated that they were constant during his waking hours. A June 2017 VA Parkinson’s disease examination report includes a notation that the Veteran’s claims file was reviewed. The Veteran reported that he did not know what Parkinson’s disease was in terms of a condition. He stated that he had suffered a cerebrovascular accident, but that he did not know when it occurred, and that old cerebrovascular changes were identified when he had brain imaging in 2016. The Veteran indicated that he suffered from nightmares, memory problems, and tremors. It was noted that the Veteran reported that he injured his back in the service when he fell in a foxhole, but that he denied a history of head injuries. The Veteran maintained that he noticed that his memory had been impaired since he returned from Vietnam. The Veteran reported that he had weakness all over. He stated that he suffered from visual disturbances, with loss of bilateral peripheral vision, as well as impaired balance, and that his speech was not clear. The Veteran reported that he first noticed dizziness when he was in service on the range in hot weather. He described a feeling like the room was spinning. The Veteran stated that the dizziness in service worsened after he fell in a foxhole. He stated that his symptoms were presently worse, that he saw stars when he experienced dizziness; and that he would have to sit down to keep from falling. It was noted that there were no known head injuries. The Veteran indicated that his tremors were worse when he felt stress. It was noted that he confirmed that the tremors were already present before the stressor would occur. The Veteran indicated that his tremors caused him to feel frustrated when he could not complete manual tasks. It was noted that the Veteran’s wife reported that his tremors were more pronounced when he was concentrating. The Veteran indicated that his tremors were noticed by a barber several years ago, that they affected his head and hands, and that they began around 1972 or 1973. It was noted that the Veteran’s wife related that the Veteran had suffered from tremors since she had known him for the past twenty years and that they had worsened. The Veteran reported that he first sought treatment for his tremors about fifteen years before he began going to VA facilities, and that he was told by his civilian doctor, at that time, that his tremors were not due to Parkinson’s disease and that he did not what was causing them. The Veteran maintained that his hand tremors were worse when his sugar would drop. He stated that his lower extremities had developed tremors when he walked. He related that his head and upper extremity tremors worsened throughout the day whether or not he was active or at rest. The examiner indicated that the Veteran did not have, and had never been diagnosed with, Parkinson’s disease. The examiner did indicate that the Veteran had a tremor (characteristic hand shaking, pill-rolling). A June 2017 VA central nervous system and neuromuscular disease examination report, by the same examiner who conducted the June 2017 VA Parkinson’s disease examination report, includes a notation that the Veteran’s claims file was reviewed. The diagnoses included essential tremors. A June 2017 VA diabetic sensory-motor peripheral neuropathy examination report, by the same examiner who conducted the June 2017 VA Parkinson’s disease examination report, includes a notation that the Veteran’s claims file was reviewed. The diagnoses were diabetic peripheral neuropathy of the upper extremities and lower extremities. The VA examiner, who conducted the June 2017 VA Parkinson’s disease examination report; central nervous system and neuromuscular disease examination report; and the diabetic sensory-motor peripheral neuropathy examination report, provided negative etiological opinions as to the Veteran’s claimed disabilities. The Board determined that the VA medical opinions of record, including the opinions pursuant to the June 2017 VA Parkinson’s disease examination report; central nervous system and neuromuscular disease examination report; and the diabetic sensory-motor peripheral neuropathy examination report, were insufficient to decide the Veteran’s claims on the merits and in November 2017 sought an opinion from a VHA expert as to the etiology of the Veteran’s claimed disabilities. The January 2018 VHA opinion was provided by a neurologist. Unfortunately, the Board finds that the VHA expert’s opinions were also insufficient to decide the Veteran’s claims on the merits. The Board notes that the service treatment records clearly show treatment for dizziness. Additionally, a post-service July 1972 VA general medical examination report, within six months of the Veteran’s separation from service, specifically documents the Veteran’s reports of weak spells and dizziness. Further, the Board notes that post-service private and VA treatment records, including VA examination reports, clearly show treatment for complaints of weak spells and dizziness. The Board also finds the Veteran’s reports of having weak spells and dizziness during service and since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board observes that, to the extent that the Veteran does not have a diagnosable disability, the VA must consider whether he has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). The Board notes that the evidence clearly indicates that the Veteran has been treated for weak spells and dizziness since his period of service. The Board finds, therefore, that a chronic disability manifested by weak spells and dizziness qualifies as a current disability to which service connection may attach. See Saunders, 886 F.3d at 1356, 1363-64. In light of the evidence of record, including the insufficient VA medical opinions and VHA expert opinions of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a chronic disability manifested by weak spells and dizziness. Thus, service connection for chronic disability manifested by weak spells and dizziness is warranted. The Board further notes that the Veteran’s service treatment records do not specifically show treatment for tremors. The Board observes, however, that post-service private and VA treatment records, including examination reports, show treatment for variously diagnosed tremors, including essential tremors, on numerous occasions. Additionally, the Board finds that the Veteran’s reports of having tremors during service and since service to be credible. See Jandreau, 492 F.3d at 1372. Therefore, the Board finds that the evidence of record indicates that the Veteran has been treated for a chronic disability manifested by essential tremors since his period of service, and that such condition qualifies as a current disability to which service connection may attach. See Saunders, 886 F.3d at 1356, 1363-64. In light of the record, the Board finds that has a chronic disability manifested by essential tremors is warranted. The Board notes that there is no evidence of record indicating that the Veteran has been treated for, or diagnosed with, Parkinson’s disease so service connection for that disease is not warranted.   As the Board has granted service connection for a chronic disability manifested by weak spells and dizziness, and for a chronic disability manifested by essential tremors, on a direct basis, it need not address any other theories of service connection in this matter. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. D. Regan, Counsel