Citation Nr: 21012648 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-19 599 DATE: March 4, 2021 ORDER 1. Entitlement to service connection for bilateral hand tremors as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. 2. Entitlement to service connection for sinusitis is denied. REMANDED 3. Entitlement to service connection for migraine headaches is remanded. 4. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Competent (medical) evidence establishes that the Veteran’s service-connected PTSD was “the most likely” etiological factor in his development of bilateral hand tremors. 2. The Veteran’s complaints of sinusitis in service were acute, and resolved; his current episodes of sinusitis are acute and are not shown to be etiologically related to his service and complaints noted therein. CONCLUSIONS OF LAW 1. Secondary service connection for bilateral hand tremors is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. Service connection for sinusitis is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1985 to September 1989 and on active duty with the Army Reserves from November 1990 to July 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision which denied service connection for a right knee disability and migraine headaches, and an August 2014 rating decision that denied service connection for hand tremors, sinusitis. A decision review officer (DRO) hearing was held in November 2016, and in October 2019, a Travel Board hearing was held before the undersigned; transcripts of both hearings are in the record. In December 2019, the case was remanded for additional development. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability for which service connection is sought; (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). 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. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to service connection for bilateral hand tremors, as secondary to service-connected PTSD, is granted. An October 2003 neurology consultation record notes the Veteran was seen with a history of depression, anxiety and anxiety disorder. He reported he had noticed tremors in both hands since 1991, beginning immediately on return from Desert Storm, and has since noticed a constant tremor without significant progression in intensity. He reported he noticed the hand tremors are more prominent when he is under stress. The provider noted his tremors seem to be likely an enhanced physiological tremor related to underlying anxiety. The provider noted an alternative possibility was an essential tremor, but noted that was less likely given the younger age of the Veteran and the lack of a family history. An August 2014 rating decision granted service connection for PTSD based on symptoms of anxiety, chronic sleep impairment, and occupational and social impairment. On August 2014 Central nervous system DBQ, the diagnosis was bilateral essential tremor of the hands. A history of treatment for a bilateral hand tremor since 2003 was noted. The examiner noted the exact cause of the tremor was unknown, but opined that it is not related to experiences in the Gulf War. A February 2015 Buddy statement notes that during service with the Veteran in Desert Shield, and Desert Storm, he noticed a shaking of the Veteran’s hands. In March 2015 correspondence, the Veteran’s mother stated that he did not have hand tremors growing up, and that his hand tremors began on his return home from Desert Storm in 1991. At the November 2016 Decision Review Office (DRO) hearing, the Veteran testified that his tremor began in 1987, and became worse when he returned home from Desert Storm, and that his hand tremors have continued since service. At the October 2019 Travel Board hearing, the Veteran testified that his hand tremors began in Desert Storm. The Board’s November 2019 remand noted that the medical opinion (against the claim) was not accompanied by an adequate explanation of rationale, and sought development for an (adequate) opinion. In the March 2020 medical opinion based on examination of the Veteran and review of his record received in response, the provider opined that the bilateral hand tremor is less likely than not related directly to the Veteran’s service. While the provider did not complete the separate section pertaining to secondary service connection, in the rationale for direct service connection, the provider stated: “In considering medical provider notations/documentations while caring for the Veteran’s bilateral hand tremor disability, the preponderance of evidence is indicative of stress and anxiety as the most likely precipitator and etiology of the Veteran’s bilateral hand tremor disability” (emphasis added). The Veteran has established service connection for PTSD (an anxiety disorder), which is currently rated 100 percent. It is not in dispute that he has a bilateral hand tremor disability. The opinion by the March 2020 examiner clearly indicates that the stress and anxiety that are manifestations of the Veteran’s PTSD are the primary causes of his bilateral hand tremors. The Board has no reason to question the expertise of the VA-chosen provider (it is accompanied by ample explanation of rationale that cites to supporting clinical data), and finds it to be persuasive evidence in support of this claim. Furthermore, the opinion is supported by the multiple lay statements that have been submitted. Considering the foregoing, the Board finds that all the requirements for substantiating a claim of secondary service connection are met, and that service connection for bilateral hand tremors as secondary to PTSD is warranted. 2. Entitlement to service connection for sinusitis is denied. The Veteran contends that he has chronic sinusitis incurred in service. An April 1991 Southwest Asia demobilization/redeployment medical evaluation notes the Veteran experienced sinusitis while deployed in Southwest Asia. A report of medical history for redeployment notes a history of sinusitis. On medical examination for redeployment a normal sinus clinical evaluation was reported. On August 2014 VA examination, it was noted that there was no diagnosis of sinusitis. An August 2014 sinus X-Ray was negative. The examiner did not find evidence of signs or symptoms associated with chronic or acute sinusitis. A December 2015 neck CT noted moderate mucosal thickening at the floor of the maxillary sinuses. A January 2016 mental health outpatient record notes the Veteran’s complaints of sinusitis interfering with his sleep. An August 2015 primary care record notes findings of non-tender sinuses with pink nasal mucosa without exudate or inflammation. September 2015, May 2016, and November 2016 neurology clinic records note the Veteran denied having sinus congestion. At the November 2016 DRO hearing, the Veteran testified that he had sinusitis in service. He stated that he was not receiving treatment for sinusitis. At the October 2019 Travel Board hearing, he testified that he was receiving VA treatment for sinusitis. A September 2018 emergency department record notes the Veteran was seen with complaints of congestion, cough, and headache for four days. The diagnosis was pharyngitis/sinusitis. Augmentin, Albuterol, Mucinex and Decadron were prescribed, and he was instructed to return if symptoms worsened. A May 2019 primary care record notes a finding of no sinus tenderness. An August 2019 primary care record notes findings of non-tender sinuses with pink nasal mucosa without exudate or inflammation. On March 2020 sinusitis DBQ the diagnosis was acute sinusitis (2018). The Veteran stated he has had sinusitis since service. It was noted that the Veteran had had sinusitis. The examiner opined that it was less likely than not that the Veteran’s sinusitis is related to service. The examiner noted that the Veteran was seen in September 2018 with acute sinusitis, but found no indication for a chronic sinus disability. It is not in dispute that the Veteran was seen with sinusitis in service, it is also not in dispute that the Veteran has been treated for sinusitis during the pendency of this claim. What remains necessary to substantiate this claim is competent evidence that his current occurrence of sinusitis is etiologically related to his active service and the complaints of sinusitis therein. The Veteran’s sinusitis in service was acute, and apparently resolved (it was noted only by history on post-deployment examination, when a chronic sinusitis was not found. A chronic sinusitis disability is not shown to have been manifested in service or for many years thereafter. The earliest post-service record of treatment for sinusitis complaints is in December 2015. Accordingly, service connection for a sinusitis disability on the basis that such disability became manifest (as chronic) in service and persisted is not warranted. What remains for consideration is whether the periodic instances of sinusitis after service may otherwise be linked etiologically to his service/complaints therein. Without evidence of chronic disability in service or a related disease therein, whether a current (described as acute) sinusitis is related to similar complaints in remote service is a medical question beyond the scope of common knowledge or capability of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The March 2020 VA examiner opined that it was less likely than not that the Veteran’s periodic occurrences of sinusitis are related to service/his sinusitis experienced in service. The examiner explained that the sinusitis in the Veteran’s record (both in service and more recently) were acute, and not a chronic disability. That opinion is consistent with the clinical data in the record that include findings (including on diagnostic studies) of no abnormal sinus pathology. The opinion is probative evidence in this matter and, in the absence of competent evidence to the contrary, persuasive. The Veteran has not presented any competent (medical evidence or treatise) evidence that his more recent sinusitis represents a chronic sinusitis that was incurred in (and manifested during) his active duty service. The medical evidence in the record does not support, but is against the allegation of a nexus between the Veteran’s post-service occurrences of sinusitis and service. He is a layperson, and his own opinion relating his post-service occurrences of sinusitis to service is not competent (probative) evidence in this matter. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. REASONS FOR REMAND 3. Entitlement to service connection for a migraine headache disability. The Board finds that there has not been substantial compliance with previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2019 Board remand noted that the Veteran is presumed sound on entry with respect to migraine headache disability. The Board noted that an October 1984 neurological clinical evaluation was normal, and there was no notation of a pre-existing migraine headache disability. It was also noted that he submitted lay statements indicating that he began experiencing migraine headaches in service. On March 2020 examination, the examiner opined that the Veteran’s migraine headache disability was caused by a childhood history of headaches. While the examiner noted that the Board’s December 2019 discussion of the legal presumption of soundness on entry in service was read, the opinion offered is inconsistent with proper application of the legal presumption of soundness on entry in service (that it is rebuttable only by clear and unmistakable evidence). Accordingly, an addendum opinion (that appropriately applies the presumption of soundness on entry with respect to the migraine headaches) is necessary. 4. Entitlement to service connection for a right knee disability. The Veteran contends that his current right knee disability (diagnosed as right knee strain) is related to his complaints of right knee pain in service. Service treatment records note a right knee strain in October 1985. On March 2020 examination, the examiner opined that it was less likely than not that the Veteran’s current right knee disability was related to service. The opinion does not include adequate rationale in that it does not acknowledge the Veteran’s lay statements of ongoing right knee pain since service; therefore it is inadequate for rating purposes. Development for another medical opinion that acknowledges consideration of the Veteran’s lay statements of ongoing right knee pain since service is necessary. The matters are REMANDED for the following: 1. Arrange for the Veteran’s record to be forwarded to an appropriate clinician (other than the March 2020 provider) for review and an advisory medical opinion addressing the likely etiology of his migraine headache disability. The Veteran’s record must be reviewed by the consulting provider. [The provider must acknowledge that the Veteran is presumed sound on entry in service with respect to a migraine headache disability (with the presumption rebuttable only by clear and unmistakable evidence) and should consider/account for the Veteran’s lay reports (which have been found credible) of continuing migraine headaches.] The opinion should respond to the following: (a.) Identify the likely etiology for the Veteran’s current migraine headache disability. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to the Veteran’s service/was incurred therein? (b.) If the Veteran’s migraine headache disability is found to be unrelated to service, identify the etiology that is more likely (and explain why that is so). All opinions must include rationale that cites to supporting clinical data and medical principles, if the opinion is that the disability pre-existed service (and was not aggravated therein)-cites to the clear and unmistakable evidence in the record that supports that conclusion. . 2. Also arrange for the Veteran’s record to be forwarded to an appropriate clinician (other than the March 2020 opinion provider) for review and a medical advisory opinion regarding the etiology of the Veteran’s right knee disability. On review of the record the clinician should: (a.) Identify (by diagnosis) each current right knee disability shown by the record during the pendency of the instant claim. (b.) Regarding each right knee disability entity diagnosed, opine whether it is at least as likely as not (a 50% or better probability) that the disability is etiologically related to the Veteran’s service and the knee strain documented therein? (c.) If a current right knee disability is found to be unrelated to the Veteran’s service (and knee strain herein), identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include a complete explanation of rationale that acknowledges the Veteran lay reports of continuing knee complaints since service, and cites to supporting clinical data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.