Citation Nr: 21003349 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-17 953 DATE: January 21, 2021 REMANDED Entitlement to service connection for essential tremors is remanded. Entitlement to service connection for allergic rhinitis, status post turbinate surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1962 to March 1968. These matters come before the Board of Veteran’s Appeals (Board) from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In December 2018 and most recently in January 2020, the Board remanded these issues for VA examinations. The Board finds the January 2020 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for essential tremors is remanded. The Veteran asserts that his essential tremors are related to service, to include exposure to environmental factors inside submarines while in service. The Veteran’s service treatment records do not show that his tremors were noted in his entrance examination. Therefore, the Veteran is presumed to have been sound when he entered into service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran’s medical records have been associated with the claims file. In December 1999, the Veteran reported frustration with his tremor which had been present as far as he could remember. See medical records for December 1999, associated with the claims file in May 2013. Medical records for October 2000 noted the Veteran’s tremor developed as a young man and had progressed over his life, affecting the use of his hands. He also reported the tremor worsened with excitement or following physical exertion. See medical records for October 2000, associated with the claims file in May 2013. In January 2008, the Veteran reported having a tremor in both hands since he was 5 or 6 years old, which his mother, grandmother and great grandmother had too. The Veteran reported remembering friends making jokes about his tremor in his early 20’s. The physician agreed with the diagnosis of essential tremor / benign familial tremor. See medical records from Dr. R, dated January 2008. Medical records for February 2008 show the Veteran’s tremors were characterized as familial. The physician noted no signs or symptoms suggestive of idiopathic Parkinson’s disease or Parkinson’s plus syndrome. See medical records from Dr. R, dated February 2008. In October 2010, the Veteran’s medical record noted that he thought his tremors were related to his unstable thyroid problems and the side effects of his medication; as the Veteran reported that medication for his thyroid problem made the tremor significantly worse. See medical records from Dr. R, dated October 2010. In April 2011, the Veteran’s medical provider noted the Veteran did not give a convincing family history of tremors. See medical records by Dr. V, associated with the claims file in December 2011. In a lay statement dated August 2011, the Veteran’s brother certified that the Veteran’s tremors began in his 40’s. A friend who has known the Veteran since around 1989, certified that how he had observed the tremors worsen. Another friend of the Veteran certified he had seen the tremors progress and has known the Veteran since 1975. See statements associated with the claims file in August 2011. In November 2016, a medical opinion dated October 2016. was associated with the claims file. The physician stated that he has treated the Veteran since 1970 for allergic rhinitis. The physician noted that the majority of cases of essential tremor are familial but that this was not the case with the Veteran who had no other family member diagnosed with essential tremors. The physician further noted that the second most common cause of essential tremors is environmental exposure to toxins and the third most common cause is the association of secondhand smoke and the filters used in the submarines during the Veteran’s service. The physician noted that certain organophosphates, which are found in hydraulic oil vapors, can inhibit important enzymes in the nervous system causing multiple symptoms including tremors within a few hours of breathing, swallowing or following skin contact with the substance. The physician also noted that filters in submarines were modified in 1992, to better filter the exhaled CO2 and other vapors. However, the Veteran’s service pre-dated this improvement. The physician opined that the toxins to which the Veteran was exposed in service, as well as secondhand smoke contributed to his development of essential tremor as he did not have a familial history of the condition. See medical opinion by Dr. V. dated October 2016 and associated with the claims file in November 2016. The Board found this medical opinion lacking probative value in its December 2018 decision given the likelihood that the physician had not reviewed the Veteran’s medical records showing a family history of the condition and because it lacked citations or copies for any medical literature supporting the opinion. See Board decision of December 2018. At the August 2018 hearing, the Veteran testified that while he was growing up, he was a very high-strung person and that if he got very excited his whole body would react. However, that in service, he did not have a problem related to nervous shakes or anything similar. He explained that he did not really have a problem aside from shaking for a few minutes if he got very excited. He explained that he felt his tremors started around 1990 and that a doctor in 1992 noticed them and diagnosed them as essential tremors. At the time, the Veteran explains the tremors were minor but that as time has progressed, they have worsened. See hearing transcript. In a November 2019 statement, the Veteran tried to summarize his assertions and supporting evidence, in favor of his claim of service connection for essential tremors. In particular, the Veteran noted that the cause of essential tremors remains unknown and that there was controversy in the medical community regarding the familial (i.e. hereditary) component of the condition. The Veteran noted that to date in his family, out of 4 living generations and 4 passed, he is the only person to have been diagnosed with the condition. The Veteran also pointed out how his entrance examination, as well as his separation examination, and other examinations while in service, did not note any tremors. He also explained that the tremors he experienced during his childhood were only present if he became overexcited and went away shortly after they began. As a child he was diagnosed with “excess energy” attributed to his being a redhead. See statement associated with claims file in November 2019. In this November 2019 statement, the Veteran also pointed out that although his brother had been diagnosed with restless leg syndrome; that the condition was not related to essential tremors but rather it is associated with Parkinson’s. He also referred to his childhood symptoms as “shakes” which he believes should not be taken into consideration, as he was in strong condition when he entered service. See statement associated with claims file in November 2019. In February 2020, the Veteran was administered a Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire (Nervous System DBQ). The examiner noted the Veteran’s diagnosis of essential tremor. Following the examination, the examiner opined that it was less likely than not that the Veteran’s tremors were related to service. In favor of his opinion, the examiner noted that the Veteran had reported to other medical providers that his tremors had begun in childhood and that his mother, grandmother and great grandmother had had it too. The examiner also noted that the Veteran had reported to his medical providers that he remembered his friends making jokes about his tremor in his early 20’s. See medical opinion 2, associated with the claims file in February 2020. The examiner also opined that the Veteran’s tremor is less likely as not related to his service, to include exposure to secondhand smoke or to environmental toxins aboard submarines from 1965 to 1967. The examiner provided as rationale that the Veteran had reported strong family history of tremors and how he had been teased in childhood for having hand tremors which cancelled out any in service association. Additionally, the examiner opined that the Veteran’s essential tremors clearly and unmistakably existed prior to his service as the Veteran had reported childhood symptoms and family history of the symptoms. The examiner also opined that the Veteran’s essential tremors, which clearly and unmistakably existed prior to service, were less likely as not aggravated by service as there was no evidence to support increased manifestation beyond that of the condition’s natural progression. In support of the opinion, the examiner noted that the Veteran’s assertions of childhood symptomatology and family history of symptoms would not have come out of nowhere, therefore proving the existence of the condition prior to service. The examiner also noted having reviewed the Veteran’s private physician opinion relating his tremors to service and the articles submitted by the Veteran in favor of his claim. The examiner noted that it was agreed that there can be a lot of factors contributing to hand tremors but that regardless of the references, the Veteran’s childhood symptoms negated any in-service association and that while there is existing medical literature supporting influence to the Veteran’s hand tremors a definitive positive opinion could not be given on direct, secondary or aggravation. See additional questions on medical opinion of February 2020. The Board finds this medical opinion inadequate for adjudication purposes as the examiner did not provide a complete rationale for most of the opinions expressed and because it does not use the correct legal standard regarding aggravation. The Board notes that in Miller v. West, 11 Vet. App. 345, 347 (1998), the Court held that “A bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness.” In Miller, the Court reversed the Board’s decision that a Veteran’s psychiatric condition had pre-existed service based on medical reports, contemporaneous to the Veteran’s service, which the Court found were not supported by any contemporaneous clinical evidence or recorded history in the Veteran’s record. Miller v. West, 11 Vet. App. 345, 347 (1998). Accordingly, the Board finds a remand is necessary to obtain an adequate medical opinion that addresses whether the Veteran’s tremors existed prior to service, and whether they were aggravated by the Veteran’s service. Additionally, the Board must also obtain clarification as to whether the Veteran’s condition, is a disease or defect; as the evidence suggests a possible hereditary or congenital component to the condition. The Board notes the Veteran has submitted lay statements where he attempts to somehow dispel the notion that his essential tremors are familial. See November 2019 statement. The Board acknowledges the Veteran’s statements that the medical community no longer refers to tremors as familial. Additionally, the Veteran also has argued that his essential tremors should not be considered as aggravated by service, as he has not argued that his condition was aggravated, but rather that his condition is caused by his service, the environmental factors in the submarines as well as viral infections which weakened his immune system. The Veteran also asserts that he entered service in a strong condition. See statement of November 2019. The Board respectfully notes that the presumption of soundness is a rebuttable presumption by clear and unmistakable evidence. The Board notes that in the present case, the Veteran has reported at various times to his medical professionals that he had suffered from tremors in both hands since his childhood or as long as he could remember. These statements contained in his medical record, suggest that although the Veteran’s tremors were not noted in his report of medical examination for enlistment or for separation, they could have pre-existed service. When this happens; when the record suggests the condition could have pre-existed service, the Board must make a factual finding on whether there is clear and unmistakable evidence that the condition indeed pre-existed service. Additionally, the Veteran has also reported to his medical providers that his mother, grandmother and his great grandmother suffered from tremors as well; which suggest a hereditary or congenital component to the condition. When this happens, the Board must also seek medical evidence to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted and, if so, whether there was aggravation during service. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Thus, based on all of the above, the Board finds a remand is necessary so that medical professional addresses whether the Veteran’s tremors are a disease or a defect, whether there is clear and unmistakable evidence that the tremors pre-existed service and whether the is clear and unmistakable evidence that the condition was not aggravated by the Veteran’s service. The Board also notes that the Veteran’s condition, as well as his medical history, is complicated. Accordingly, upon remand, the RO must make reasonable efforts to provide the Veteran with an examination by a neurologist or someone skilled in diseases of the brain and nerves. 2. Entitlement to service connection for allergic rhinitis, status post turbinate surgery is remanded. The Veteran seeks service connection for residuals of a turbinate surgery. In its December 2018 remand, the Board recharacterized the Veteran’s claim as service connection for allergic rhinitis to include residuals of a turbinate surgery in case the underlying condition that resulted in the surgery was present during the appeal period. See December 2018 Board remand. The Veteran asserted that he developed allergies due to his service and as a result of exposure to secondhand cigarette smoke, exposure to a number of environmental contaminants present on a submarine and due to a weakened immune system due to mononucleosis. See statement of August 2018 and hearing transcript at pages 8-11. The Veteran’s service treatment records (STRs) and post-service medical records have been associated with the claims file. The Veteran’s STRs show he reported no history of sinusitis nor hay fever in his report of medical history for enlistment, dated March 1962. Furthermore, the Veteran’s report of medical examination for enlistment dated March 1962, shows the Veteran was noted to have normal sinuses, normal nose, and normal throat. However, the STRs also show that in August 1967, the Veteran was treated for a sinus headache. In December 1967 the Veteran complained of general malaise and stated that the last time he felt like that, was when he had infectious mononucleosis. A CBC was ordered which revealed a white blood cell (WBC) count of 9,000. Furthermore, the Veteran’s report of medical examination for separation dated February 1968 noted normal sinuses, normal nose and normal throat. See STRs. In July 1968, the Veteran was examined by VA. Pertinent to the present claim, an Ear Nose and Throat Examination was completed. The Veteran’s nose was noted to have a narrow vestibule with “sl. boggy mucosa.” The Veteran was also noted to have an adenoid and it seems the Veteran was recommended an adenoidectomy. See VA examination of July 1968, dated in the claims file October 1968. The Veteran’s medical records show that in March 1998, the Veteran reported a long history of seasonal and perennial allergic rhinitis that was treated with shots; his nose was noted as mildly edematous. See medical records for March 1998, associated with claims file in May 2013. In July 1999, the Veteran’s allergies were treated with shots that had been ongoing since a year prior to the visit. See medical records for July 1999, associated with claims file in May 2013. In November 2016, a medical opinion dated October 2016, noted that the subscribing physician had treated the Veteran since 1970 for allergic rhinitis. See medical opinion dated October 2016 by Dr. V., associated with the claims file in November 2016. The Board notes this medical opinion did not cover the Veteran’s claim of service connection for allergic rhinitis status post turbinate surgery; however, the Board finds it important as it speaks to the length the Veteran has suffered from allergic conditions. In a Sinusitis/Rhinitis and other Conditions of the Nose, Throat, Larynx, and Pharynx Disability Benefits Questionnaire (Rhinitis DBQ) of January 2020, the Veteran was noted to have a diagnosis of allergic rhinitis. Following the examination, the examiner subscribed the following medical opinion: the claimed condition is less likely than not related to the Veteran’s service, to include the exposure to secondhand smoke and environmental contaminants aboard a submarine. In favor of his opinion, the examiner noted that although the Veteran was treated for a sinus headache in August 1967, that the condition was acute in nature and not a chronic sinus condition, and there was no evidence of a chronic allergy condition noted in the Veteran’s report of medical examination for separation in 1968. Additionally, the examiner noted that the Veteran’s turbinectomy, performed in 2005- many years after service, was performed as treatment for hypertrophied turbinates which resolved with the surgery. The Veteran was noted to have no residuals from his turbinectomy. Furthermore, the examiner noted that although the Veteran’s skin test shows he is sensitive to natural allergens; there is a lack of evidence of a chronic disabling sinus condition at separation and that the Veteran’s symptoms would have arisen sooner if they were associated with secondhand smoke exposure. See medical opinion of January 2020. The Board finds this medical opinion inadequate as it does not take into consideration the VA examination of 1968, less than a year from the Veteran’s separation from service, where the Veteran was noted to have a boggy mucosa and seems to have been recommended an adenoidectomy. Accordingly, the Board finds a remand is necessary to obtain a new examination and medical opinion that takes into consideration the medical record, to include the findings of the 1968 VA examination. The matters are REMANDED for the following action: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Schedule the Veteran for a new examination regarding his essential tremors. The RO must make reasonable efforts to schedule this examination with a neurologist or any other medical provider specialized in brain and nerve disorders. The examiner is asked to elicit a complete history from the Veteran regarding the condition, revise this remand and note so in the examination report, note his/her specialty, and is asked to opine: a. Whether the Veteran’s statements regarding his childhood shakes/tremors is consistent with a diagnosis of essential tremors. b. Whether the Veteran’s essential tremor is a congenital disease or a congenital defect. c. Whether there is clear and unmistakable evidence that the Veteran’s tremors pre-existed his military service d. Whether there is clear and unmistakable evidence that the Veteran’s tremors were not aggravated beyond its natural progression, by the Veteran’s service including his exposure to environmental factors in submarines such as secondhand smoke, organophosphates, exposure to fumes from fresh epoxy pain, new adhesive that held the anti-sweat insulation in place, hydrocarbons from lubricating oils, cooking vapors and carbon dioxide levels. e. If the examiner determines that there is NOT clear and unmistakable evidence that the Veteran’s essential tremors pre-existed his service, the examiner is asked to opine: i. whether the Veteran’s diagnosed essential tremors is etiologically related to his service, to include his claimed exposure to environmental factors. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. Schedule the Veteran for a new examination regarding his claim of service connection for allergic rhinitis. If possible, the examination must be performed by a different examiner than the one that examined the Veteran in 2020. The examiner is asked to elicit a complete history of the Veteran’s medical history regarding his allergic rhinitis and is asked to opine: a. whether the Veteran’s allergic rhinitis had its onset in service or is at least as likely as not related to service. b. In emitting this opinion, the examiner is asked to consider and address: i. the Veteran’s statements regarding the onset of the condition, the VA examination of 1968, and the medical records. ii. how he believes his allergic rhinitis is related to exposure to fumes from fresh epoxy pain, new adhesive that held the anti-sweat insulation in place, smoke from cigarettes, hydrocarbons from lubricating oils, cooking vapors and carbon dioxide levels; iii. the August 2018 statement and the flow chart attached of how the Veteran believes his conditions are intertwined; iv. the Veteran’s assertion that he developed mononucleosis shortly following service which compromised his immune system and; v. the November 2019 statement containing citations to medical literature which the Veteran asserts support his claims The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 4. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.