Citation Nr: 21001213 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-32 928 DATE: January 7, 2021 REMANDED Entitlement to service connection for essential tremors is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1955 to January 1957. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in July 2020. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in August 2020, on which occasion the claim was remanded. Entitlement to service connection for essential tremors is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In an August 2020 Board decision, the Board remanded the Veteran’s claim for a VA examination and medical opinion. The RO complied with the Board’s remand instructions, and in October 2020 the Veteran was afforded a VA central nervous system examination with a medical opinion regarding whether the Veteran’s essential tremors are related to an in-service injury, event, or disease, including in-service exposure to acetone or an in-service concussion. The October 2020 VA examiner opined that essential tremors were less likely than not incurred in or caused by exposure to acetone or an in-service concussion. The examiner indicated that exposure to acetone was “unlikely” to be the cause of the Veteran’s tremors as acetone exposure can cause “acute tremor[s] . . ., but there are no long term effects in patients who recover.” Regarding whether an in-service concussion caused the Veteran’s tremors, the examiner indicated that he “found no evidence of a concussion in-service.” The examiner ultimately concluded that the Veteran’s tremors preexisted his period of active duty service based on VA neurology reports which indicated that tremors first manifested during childhood. (10/22/2020, C&P Exam, p. 3). The Board finds that the October 2020 VA examiner failed to properly apply the presumption of soundness. A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Anderson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence”). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is “cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable . . ..” Id. at 261. It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). The presumption of soundness attaches only where there has been an induction examination. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). However, the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody. See Lee v. Brown, 10 Vet. App. 336, 339 (1997) (directing the Board to consider the presumption of soundness on remand in a case in which the veteran’s service medical records were presumed destroyed in a fire). In the present case, the Veteran's entrance examination is presumed to have been destroyed during the 1973 fire at the National Personnel Records Center (NPRC). As it would be purely speculative to suggest that any records that may have been destroyed may also have contained evidence of a preexisting disability, the Board cannot conclude that the destruction of the appellant’s records precludes the application of the presumption of soundness. See Quirin v. Shinseki, 22 Vet. App. 390, 397. As such, the Board will assume that the Veteran was examined upon entry into service and no pre-existing tremors were noted. VA may rebut the presumption of soundness on a showing of clear and unmistakable evidence that demonstrates that his tremors existed prior to service, and that the disability was not aggravated by such service. In the present case, the October 2020 VA examiner cited to VA neurology reports from June 2002 and September 2005 as evidence that the Veteran’s tremors first manifested during childhood. However, lay reports of a pre-existing disability are not sufficient to rebut the presumption of soundness. See Paulson v Brown, 7 Vet. App. 466, 470 (1995). Moreover, there is conflicting evidence regarding when the tremors first manifested. Specifically, the Veteran asserted that he started experiencing tremors after his period of active duty service, around 1964, (7/13/2020, Hearing Transcript, p. 9), and his private neurology records indicate that tremors manifested in “his 20s,” (11/26/2020, Medical Treatment Record, p. 15). Given the conflicting evidence of record, the Board finds that VA has not demonstrated by clear and unmistakable evidence that his tremors existed prior to service. As such, the Board concludes that the Veteran should be afforded the presumption of soundness, as the first element of the presumption has not been rebutted here. Having established that the presumption of soundness applies, the Board must determine if the evidence currently of record demonstrates entitlement to service connection. As previously noted, the Veteran was afforded a VA examination in October 2020, wherein a VA examiner opined that essential tremors were less likely than not caused by an in-service concussion. The Board finds that the October 2020 examination is inadequate for evaluation purposes as the examiner failed to duly consider competent and credible lay evidence of an in-service concussion. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the present case, the October 2020 examiner concluded that there was “no evidence of a concussion in-service,” despite the Veteran’s competent and credible lay reports of being diagnosed and treated for a concussion. Nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As the examiner failed to consider competent lay evidence, the opinion is inadequate to determine whether an in-service concussion caused the Veteran’s current essential tremors. As such, the claim must be remanded for an addendum opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from October 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s essential tremors are at least as likely as not related to an in-service concussion. In rendering an opinion, the examiner must assume that: (a.) the Veteran was in sound condition at the time of his enlistment; and (b.) that he suffered an in-service concussion as described in his July 2020 Board hearing. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.