Citation Nr: 21009010 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-02 842 DATE: February 18, 2021 ORDER Service connection for essential tremors is denied. Service connection for a psychiatric condition is denied. FINDINGS OF FACT 1. The appellant is not entitled to “veteran” status and had no period of active duty. 2. The preponderance of the evidence weighs against a finding that the appellant’s essential tremors manifested during a period of active duty for training or his National Guard service or is otherwise causally or etiologically related to a period of active duty for training or his National Guard service. 3. The preponderance of the evidence weighs against a finding that a psychiatric condition manifested during a period of active duty for training or his National Guard service or is otherwise causally or etiologically related to a period of active duty for training or his National Guard service; the appellant is not service connected for essential tremors. CONCLUSIONS OF LAW 1. The criteria for service connection for essential tremors have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a psychiatric condition have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) in the U.S. Army from June 1979 to December 1979 and with the National Guard from May 1979 through March 1983. A hearing was scheduled for February 4, 2019, for which the appellant was notified but did not report. The appellant has not shown good cause for failing to appear at the scheduled hearing. As the appellant was properly notified of the time, date, and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d) (2018) (now 38 C.F.R. § 20.603(d) (2020)). These matters were previously before the Board in April 2019 when they were remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service – the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 U.S.C. § 101 (24) “active military, naval, or air service” includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty; and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. For the purposes of determining service connection based on Reserve service, ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Annual two-week training is an example of ACDUTRA. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA for service connection to be granted. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) apply to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to an appellant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Valerie Y. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In essence, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the appellant claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the appellant has not achieved “veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish “veteran” status, the claimant must demonstrate both elements of aggravation – (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). See Donnellan, 24 Vet. App. 167. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the “benefit of the doubt” standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. See Donnellan, 24 Vet. App. 167. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. Accordingly, the burden to establish incurrence or aggravation in service remains with the appellant. As noted above, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for essential tremors is denied. The appellant asserts service connection is warranted for essential tremors. He also asserts his diagnosed condition preexisted his service. See November 2019 Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire. Due to the physical demands or the stress of his service, he contends his condition was aggravated beyond its natural progression. See November 2009 Appellant Statement. In a November 2009 statement, the appellant states that during his service, his tremors interfered with tasks such as putting the handguard back on his M-16 rifle. He indicates that on another occasion, due to an unsteady hand, he punctured his hand with a knife while opening a can. He states, “though the injury was minor, it was aggravating as [were] hundreds of other incidents.” He also states as time went on, the tremors overwhelmed him, and in order to evaluate his situation, he had to take time off. Additionally, in his November 2009 statement, the appellant asserts “his condition was aggravated beyond its natural progression based on facts that any kind of stress, excitement, physicalness [sp], exercising the body or exertion in combination with the essential tremors aggravates the tremors.” He further states, “[I]t is then logical to assume that my condition was aggravated and aggravated beyond [its] natural progression” and that “anything done repetitiously and over one’s limitations with having a major vexation naturally aggravates the condition beyond natural progression.” The Board finds the appellant is competent to report his physical symptoms. Jandreau v. Nicholson, 492F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). The Board remanded the appellant’s service connection claim for essential tremors in April 2019, and in that remand the Board determined the claimant is entitled to the easier presumption of the aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). However, after a closer review of the appellant’s military records, the Board finds he had no active duty service because military personnel records received in November 2009 note the appellant was enlisted in the Army National Guard on May 5, 1979, for a period of six years. Furthermore, he was ordered to ACDUTRA on June 27, 1979, and was honorably released from ACDUTRA on December 6, 1979, to complete his remaining service obligation. On March 25, 1983, the appellant was discharged with a general discharge from the Indiana National Guard. As previously discussed, the law provides for certain evidentiary presumptions to assist veterans in establishing service connection for a disability, such as the presumption of soundness. However, the presumption of soundness does not apply to periods of service characterized as ACDUTRA. Smith, 24 Vet. App. at 45-46; see also Acciola, 22 Vet. App. at 324. In addition, when a claim is based on a period of ACDUTRA, the presumption of aggravation is inapplicable, even if the claimant has achieved “veteran” status during a prior period of service. Smith, 24 Vet. App. at 45-46. As a result, since the appellant had no active duty service, the presumption of aggravation does not apply. When an appellant only had ACDUTRA or INACDUTRA and is not a service-connected veteran (the appellant is not service-connected for anything) no presumptions will apply. See Smith, 24 Vet. App. at 48; Donnellan, 24 Vet. App. 167. Accordingly, his service-connection claim for essential tremors must be adjudicated as a claim for direct service connection. Regarding this, the Board notes there is a positive opinion statement of record from March 2010. The Board observes the AOJ has questioned the credibility of that opinion because, for example, it is not on official letterhead (though the address given with the opinion is from a medical center). Without further assessing the credibility of the document, the Board observes the opinion contains insufficient rationale. As a result, the Board finds little probative value in the opinion. The Board remanded this issue in April 2019 for a VA nexus opinion. In December 2019, a VA examiner found the appellant’s tremoring can be brought on by certain activities. The examiner states the fact the appellant’s tremors worsened with certain activities such as when handling a rifle, eating, or performing fine motor skills does not indicate any increase beyond the natural course of the tremor. The examiner observes prior treatment records note that the appellant’s tremors interfere with certain tasks and are aggravated by physical activity and anxiety, which the examiner finds is evidence that any increase in the appellant’s essential tremors is due to the natural progress associated with doing any physical activity or experiencing stress and not specific to any event or aspect of service. The examiner concludes that the appellant’s essential tremors, which they note are hereditary, are aggravated by physical activity, stress, and postural factors, which are natural aggravations of his essential tremors and would not be exclusive to his military service. In determining that direct service connection is unwarranted in this case, the Board finds the negative opinion provided by the VA physician in December 2019, following an examination of the appellant, to be the most probative evidence of the record. In their opinion, the examiner notes the appellant’s diagnosis of essential tremors and opines that any increase in the appellant’s essential tremors is due to the natural progress associated with any physical activity or stress and not specific to any event or aspect of service. As the December 2019 VA opinion reflects consideration of all relevant facts and is supported by an adequate rationale, the Board finds it carries great weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding it is the factually accurate, fully-articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent medical opinion of record to the contrary as the Board finds the positive opinion statement of record from March 2010 contains insufficient rationale and as a result, offers very little to no probative value. The Board acknowledges the appellant’s belief that his current essential tremor condition is related to his service. However, as a lay person, he has not shown he has specialized training sufficient to render an opinion as to the effect of his military service on his current essential tremor condition. See Jandreau, 492F.3d at 1377. In this regard, since the appellant is a lay person in the field of medicine, his opinion that his current essential tremors are related to his in-service tremors is not competent evidence because this is a determination that cannot be made based on lay observation alone given the long period of time that elapsed between service and the appellant’s current condition. The Board finds the opinion of the December 2019 examiner to be significantly more probative than the appellant’s lay assertions. Id. The Board must also address that while in April 2019 it requested a VA examiner to apply the standard of clear and unmistakable evidence and the VA examiner subsequently did not apply the correct standard in stating their rationale, that standard does not apply to this case because, as discussed above, no presumptions apply to this case. As a result, the Board finds the April 2019 VA examiner’s failure to apply the correct standard to be a harmless error. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In sum, there is no probative evidence of record showing the appellant’s current essential tremor condition is related to a period of active duty for training. Because the preponderance of the evidence weighs against the appellant’s claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.0 2. Service connection for a psychiatric condition is denied. The appellant seeks service connection for a psychiatric condition to include as secondary to essential tremors. Specifically, in a September 2010 Notice of Disagreement, the appellant states his psychiatric problems were aggravated by ACDUTRA or his National Guard service. The evidence of record also raises the theory that a psychological condition could have been caused by, incurred during, or otherwise related to the appellant’s service. The record reflects he sought psychiatric treatment as far back as 1984, which is the year following his discharge from service. See November 2009 Private Treatment Records. As to a current diagnosis, a post-remand March 2020 VA examination report notes diagnoses of a generalized anxiety disorder and a persistent depressive disorder. Of note, the examination report documents the appellant reported his anxiety began during high school and is related to his tremors, which the believes were apparently aggravated during that time from playing sports at school. Regarding his depression, he stated his depression began before his service. The examination report also notes the appellant’s tremors increase his anxiety, and his anxiety increases when he has tremors. A VA opinion was obtained in March 2020. For direct service connection, the examiner provided a negative opinion. The examiner found the appellant’s service medical records support he experienced anxiety and nervousness during service. However, the examiner found the appellant’s anxiety and depression pre-existed service. Furthermore, the examiner found the appellant’s service medical records do not support that service connection is warranted for depression as depression was not noted within his service medical records. In support of their conclusion, the examiner notes a June 1984 psychosocial evaluation noting anxiety but not depression. Regarding secondary service connection, the examiner found the appellant’s persistent depressive disorder is less likely than not related to his essential tremors. In support of their finding, the examiner states the appellant reported that his depression began before his military service and was related to decision to join the military instead of completing his education. For the appellant’s diagnosed generalized anxiety disorder, the examiner found it is at least as likely as not that the appellant’s generalized anxiety disorder is related to his essential tremors. The appellant reported his anxiety began during high school and was related to his tremors, but the appellant further reported that his anxiety increased as the years went by. Considering service connection on a direct basis, the Board finds such an award is unwarranted. The March 2020 VA examiner found the appellant’s anxiety and depression pre-existed service. The examiner also found the appellant’s service medical records do not support that service connection is warranted for depression as depression was not noted within his service medical records, and the psychosocial evaluation from June 1984 indicated anxiety but mentioned nothing of depression. Regarding secondary service connection, the examiner found the appellant’s persistent depressive disorder was unrelated to his essential tremors as the examiner notes the appellant reported that his depression began before his military service and was related to his decision to join the military instead of completing his education. With respect to any claim for aggravation of a preexisting persistent depressive disorder during a period of ACDUTRA or INACDUTRA, in order for the appellant to establish “veteran” status, the claimant must demonstrate both elements of aggravation – (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). See Donnellan, 24 Vet. App. 167. Since depression is absent from his service medical records and from the June 1984 psychosocial evaluation, there is no direct evidence showing a worsening of any depression during any period of ACDUTRA and that the worsening was caused by any period of ACDUTRA. As discussed above, since the presumption of aggravation does not apply here, direct evidence must show both a worsening of the appellant’s condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. The Board attaches significant probative weight to the March 2020 opinion as it is well-reasoned, consistent with the evidence of record, considered both the medical evidence and lay statements in the claims file, and is supported by adequate rationale. The March 2020 VA psychologist did find that the appellant’s diagnosed generalized anxiety disorder is at least as likely as not related to his essential tremors. However, since the service connection claim for essential tremors is denied here, any secondary service connection claims based on that same claim must also be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In conclusion, the preponderance of the evidence is against the award of service connection for a psychiatric condition as such disabilities were neither incurred in during a period of active duty for training or the result of any service-connected disabilities. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.