Citation Nr: 18151341 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 18-49 199 DATE: November 16, 2018 ORDER The Veteran’s petition to reopen his claim for service connection for non-essential tremors based on new and material evidence is granted. REMANDED Entitlement to service connection for essential tremors is remanded. FINDINGS OF FACT 1. An April 2013 rating decision denied service connection for non-essential tremors; the Veteran did not perfect an appeal. 2. Evidence submitted since the April 2013 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran’s non-essential tremors claim, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2013 rating decision which denied service connection for non-essential tremors is final. 38 U.S.C. § 7105. 2. New and material evidence has been received since the April 2013 rating decision and the claim of entitlement to service connection for non-essential tremors is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is a recipient of the Korean Service Medal and the United Nations Service Medal. New and Material Evidence for Non-Essential Tremors In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. However, pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In such a case, the claim is reopened and the former disposition of that case is reviewed de novo and re-adjudicated. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Here, the April 2013 essential tremors decision became final because the Veteran did not submit a timely appeal, nor did he submit additional evidence in support of his claim prior to the expiration of the appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. New evidence is defined as evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since the time of the April 2013 rating decision the Veteran has submitted evidence reflecting additional treatment for tremors and new lay statements explaining that over the course of his active service he was exposed to chemicals and other hazardous materials to include gasoline and asbestos. This evidence was not previously considered, at the time of the April 2013 rating decision, and, because the Veteran did not develop non-essential tremors until several decades after service, it raises a reasonable probability of substantiating the claim. Accordingly, the Board finds that reopening of the Veteran’s claim of entitlement to service connection for non-essential tremors is warranted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for essential tremors is remanded. The Veteran has a current diagnosis of non-essential tremors. Additionally, as stated above, the Veteran indicated that he was exposed to various chemical and other hazardous material during his active duty service such as gasoline, paints, and asbestos. A review of the Veteran’s personnel records indicates that the Veteran’s military occupational specialty (MOS) during service was wireman, that he participated in defense of United Nations position in Korea, and that he served aboard the U.S.S. Henrico. The Board cannot make a fully-informed decision on the issue of entitlement to service connection because no VA examiner has opined as to whether there is a nexus between the claimed in-service chemical and hazardous exposure summarized above and the Veteran’s non-essential tremors. Moreover, as the record reflects that the Veteran is currently getting ongoing VA treatment for his non-essential tremors, on remand, any outstanding relevant VA treatment records should be procured. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records dated to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any pertinent outstanding private treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s non-essential tremors. The examiner must opine whether the Veteran’s non-essential tremors are at least as likely as not related to an in-service injury, event, or disease, to include but not limited to exposure to chemicals and hazardous materials such as gasoline, paints, and asbestos. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. Subsequently, readjudicate the appeal. If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, and afford an appropriate period for response, prior to returning the appeal to the Board. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcella Coyne, Associate Counsel