Citation Nr: 21001959 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 09-07 704 DATE: January 12, 2021 REMANDED Entitlement to service connection for a neurological condition, to include a pinched nerve, sciatica, peripheral neuropathy, and tremors, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 to January 1958. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2012, the Veteran testified at a Travel Board hearing before Veterans Law Judge (VLJ) Senyk; in June 2018, the Veteran testified at a videoconference Board hearing before VLJ Kennedy. Transcripts of both hearings are of record. This matter stems from two separate appellate streams that were merged, entitlement to service connection for a neurological disability, with manifestations of tremors and entitlement to service connection for a neurological disability to include a pinched nerve, sciatica and peripheral neuropathy. Previously, the Veteran’s claim for entitlement to service connection for a neurological disability, with manifestations of tremors was remanded in April 2012 and May 2018. As there have been hearings by two separate VLJs on the issue on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102 (a). Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a “claimant’s appeal is assigned to a Board panel in a piecemeal fashion,” the Court held in that the “claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case.” Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather “only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case.” Id. The Veteran was notified of his right to testify at a third hearing at the pre-hearing conference during the June 2018 Board hearing. See June 2018 Board hearing transcript, p. 3. He indicated that he would waive a third hearing in this case. Id. Therefore, the Board will proceed without a third hearing. 1. Entitlement to service connection for a neurological condition The Veteran contends that he has various neurological conditions related to his service. Specifically, he contends his sciatica, pinched nerve, peripheral neuropathy, and tremors are related to in-service head injuries. The Veteran’s post-service treatment records show diagnoses of the neurological disabilities the Veteran is claiming. Specifically, his VA treatment records show diagnoses of essential and other specific forms of tremor in 1993, sciatica in October 2010, and peripheral neuropathy in November 2011. In December 2016, the Veteran reported at a VA neurology consultation that his tremors worsened when he was stressed or anxious. The Veteran consistently stated that he injured his head in service and related his neurological disorder to such injuries. See, e.g., February 2008 statement; February 2012 Board hearing; January 2015 Form 9; April 2018 Form 9; June 2018 Board hearing. In April 2008, March 2012, and June 2013, the Veteran sister stated that she recalled that the Veteran had a head injury in service. She stated he had various medical problems after the head injury, including tremors. In March 2013, a private doctor opined that the Veteran’s diagnosed essential tremor is at least as likely as not related to his reported head injury. The private doctor explained that given that little is known about the etiology of essential tremors, a possible connection exists, but the doctor noted that such could not be said with any certainty. The doctor did note that the Veteran’s anxiety would “exacerbate” his tremor. In May 2013, a private doctor opined that it is within a reasonable degree of medical certainty that there does exist a relationship between the Veteran’s tremors and his military service or service-related disabilities. The private doctor explained that incidents of head trauma while aboard a ship could now cause a tremor. On February 2019 VA traumatic brain injury examination of the Veteran, the examiner (a rehabilitation practitioner) opined that it is at least as likely as not the Veteran had two concussions in service. The examiner based this opinion solely on the Veteran’s self-reports of head traumas. The opinion is based on an inaccurate factual premise (that the Veteran had multiple head injuries in service). A December 2020 Board decision conceded that the Veteran sustained a head injury in service, and granted service connection for a scar on his forehead. While the Board has acknowledged there was one instance of such trauma in service, the evidentiary record provides no support for the Veteran’s accounts that there were multiple such injuries. The record does not include an adequate medical advisory opinion regarding the etiology of the Veteran’s diagnosed disorders. VA is obliged to secure an adequate opinion when the record contains competent evidence that a claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). As the Veteran has diagnoses of neurological disorders, there is evidence of a head injury in service, and there is some (insufficient to decide the claim) evidence that the claimed disabilities may be etiologically related to the injury in service, development for an adequate medical advisory opinion is necessary. The evidence in the record (described above) also raised an alternative theory of entitlement in this matter (one of secondary service connection); specifically, that the Veteran’s tremors may be aggravated by his service-connected psychiatric disability. Therefore, that theory of entitlement must also be address by the medical opinion that is provided. The matters are REMANDED for the following action: 1. Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician (preferably in neurology) for review and a medical advisory opinion concerning the likely etiology of his various diagnosed current neurological disabilities. If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged. The consulting clinician is asked to provide responses to the following: (a.) Identify (by diagnosis) each of the Veteran’s current neurological disabilities shown in the record (or found on examination, if one is conducted), to include pinched nerve, sciatica, peripheral neuropathy, and/or tremors. (b.) Regarding each neurological disability diagnosed (and/or found), opine whether it at least as likely as not had its onset in service, was manifested to a compensable degree within a year following service, or is otherwise shown to be etiologically related an injury, event or disease in service to specifically included the acknowledged instance of head trauma when the Veteran sustained the residual scar which is now service-connected. If a neurological disability is found to be related other injury in service, identify the evidence (beyond the Veteran’s self-reports) supporting that another injury(ies) occurred in service. (c.) If a diagnosed neurological disability is determined to not be etiologically related directly to the Veteran’s service/an injury therein, opine further whether it is at least as likely as not that the disability is secondary to (was caused or aggravated by) the Veteran’s service-connected psychiatric disability. (d.) If a diagnosed neurological disability is determined to not have been incurred in service or caused by the Veteran’s service-connected psychiatric disability, but is found to have been aggravated by the psychiatric disability, identify (to the extent possible) the baseline severity of the neurological disability prior to the aggravation and the severity of the disability after the aggravation has occurred. (e.) Each opinion must include a complete explanation of rationale. S. L. KENNEDY Veterans Law Judge Board of Veterans’ Appeals GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten, 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.