Citation Nr: 21025270 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-26 267 DATE: April 27, 2021 ORDER Entitlement to service connection for an essential tremor disability is denied. Entitlement to service connection for right carpal and cubital tunnel syndrome (RCTS disability) is denied. Entitlement to service connection for left carpal and cubital tunnel syndrome (LCTS disability) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran’s essential tremor disability was not manifest in service, was not manifest within one year of separation and is not related to service. 2. The Veteran’s RCTS disability was not manifest in service, was not manifest within one year of separation and is not related to service. 3. The Veteran’s LCTS disability was not manifest in service, was not manifest within one year of separation and is not related to service. CONCLUSIONS OF LAW 1. An essential tremor disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. A RCTS disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. A LCTS disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 2004 to October 2004 and from July 2006 to November 2007, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in February 2019 and has since been returned to the Board for appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military 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) 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, including other organic diseases of the nervous system (tremors), may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as other organic diseases of the nervous system is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Essential Tremor The Veteran has a current essential tremor disability in his hands. For example, at his November 2019 VA examination he was diagnosed with essential tremor, and he reported that the tremors were isolated to his hands. Thus, the remaining question is whether the current essential tremor disability is related to service. Service treatment records show no complaints, diagnosis, or treatment related to an essential tremor disability. As the Veteran reported other ailments during service, and tremor problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with tremor during service the Board would expect that he would have reported these problems to medical professionals. During the October 2007 post-deployment health assessment, evaluation of his hands and feet were normal. In a corresponding report of medical assessment, the Veteran specifically denied having had tremors. If essential tremor was present during service, the Board would expect the Veteran would have identified having tremor symptoms at separation because a reasonable person would have interpreted the question to include symptoms of essential tremor. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having tremor symptoms. An essential tremor disability is not shown by medical evidence until approximately 2011, several years after the Veteran’s separation from service. Regarding onset of symptoms related to an essential tremor disability, post-service the Veteran has reported noticing tremors in himself shortly after the birth of his daughter around 2011. The Veteran presented for a VA examination in November 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the essential tremor was less likely than not caused by service. In support of this conclusion, the examiner explained that the Veteran had a strong familial predisposition to develop essential tremor, and that it is not well accepted or suspected of being linked to physical or occupational activities or labor. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, in a February 2011 VA treatment record, the Veteran reported having had tremor in his right hand for almost a year. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a tremor disability is not warranted. As there is a current diagnosis of essential tremors, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a tremor disability on a presumptive basis is not warranted as the record does not show evidence of a tremor disability within one year of the Veteran’s separation from active duty. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 cannot be applied. To the extent that the Veteran is asserting that he experienced continuing symptoms of a tremor disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a tremor disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a tremor disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board finds that the evidence is against a finding that the Veteran’s essential tremor disability is otherwise etiologically related to his service. Significantly, the service treatment records show no complaints, diagnosis, or treatment related to an essential tremor disability. Furthermore, the only medical opinions addressing the etiology of the essential tremors disability weigh against the claim. As noted above, the November 2019 VA examiner opined that the essential tremor was less likely than not caused by service as the examiner explained that the Veteran had a strong familial predisposition to develop essential tremor, and that it is not well accepted or suspected of being linked to physical or occupational activities or labor. The Board affords the VA examiner’s November 2019 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner’s November 2019 opinions to be persuasive. In sum, the Board finds that service connection for an essential tremor disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. RCTS disability & LCTS disability (bilateral CTS disability) The Veteran asserts that he was diagnosed with tendinitis during boot camp and that this caused his current bilateral CTS disability. For example, in the July 2015 Form 9, the Veteran reported to being treated in boot camp for bilateral wrist tendonitis and that he was told by the doctor that the tendonitis could turn into CTS disability. The Veteran has a current bilateral CTS disability. For example, at his November 2019 VA examination he was diagnosed with bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. Thus, the remaining question is whether the current bilateral CTS disability is related to service. Service treatment records show no complaints, diagnosis, or treatment related to a CTS disability on either hand. As the Veteran reported other ailments during service, and CTS problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with CTS on either hands during service the Board would expect that he would have reported these problems to medical professionals. During the October 2007 post-deployment health assessment, evaluation of his hands and feet were normal. In a corresponding report of medical assessment, the Veteran specifically denied having had pain or numbness in his hands or wrists. If bilateral CTS disability was present during service, the Board would expect the Veteran would have identified having tremor symptoms at separation because a reasonable person would have interpreted the question to include symptoms of bilateral CTS disability. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having tremor symptoms. Bilateral CTS disability is not shown by medical evidence until approximately 2011, many years after the Veteran’s separation from service. Regarding onset of symptoms related to bilateral CTS disability, post-service the Veteran has reported first being evaluated with bilateral carpal tunnel syndrome in 2011 after developing bilateral hand numbness in the thumb and index finger. The Veteran presented for a VA examination in November 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that bilateral CTS disability was less likely than not (less than 50 percent probability) related to active service including physical labor performed therein. In support of this conclusion, the examiner explained that bilateral CTS disability can occur after significant wrist crush injuries, but it is not associated with tendinitis as diagnosed in the Veteran during active service. Regarding the medical evidence suggesting repetitious forceful exertion of the hands and wrists as being risk factors for carpal tunnel syndrome, the examiner explained that the risk occurs with ongoing performance of the inciting activities and disappears after ceasing those activities. Instead, the examiner explained that the Veteran’s post-service health conditions likely caused the CTS disability symptoms to develop based on review of his medical records. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, at separation, the Veteran remarked that he felt no symptoms regarding his hands. He specifically denied having had numbness in his hands. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a bilateral CTS disability is not warranted. As there is a current diagnosis of bilateral CTS, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including CTS, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a bilateral CTS disability on a presumptive basis is not warranted as the record does not show evidence of a tremor disability within one year of the Veteran’s separation from active duty. As there is no competent evidence that the disability manifested to a compensable degree within one year of his active service and was not continuous since service, a presumption of service connection under 38 U.S.C. §§ 1112, 1137 and 38 C.F.R. §§ 3.307, 3.309 cannot be applied. To the extent that the Veteran is asserting that he experienced continuing symptoms of a CTS disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a CTS disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of a CTS disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Board finds that the evidence is against a finding that the Veteran’s bilateral CTS disability is otherwise etiologically related to his service. Significantly, the service treatment records show no complaints, diagnosis, or treatment related to a bilateral CTS disability. Furthermore, the only medical opinions addressing the etiology of the bilateral CTS disability weigh against the claim. As noted above, the November 2019 VA examiner opined that that the Veteran’s bilateral CTS disability was less likely than not (less than 50 percent probability) related to active service including physical labor performed therein as the examiner explained that bilateral CTS disability can occur after significant wrist crush injuries, but it is not associated with tendinitis as diagnosed in the Veteran during active service. The Board affords the VA examiner’s November 2019 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. None of the competent medical evidence of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Thus, the Board finds the examiner’s November 2019 opinions to be persuasive. In sum, the Board finds that service connection for a bilateral CTS disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). All Disabilities The Board notes the Veteran’s contentions regarding the etiology of his claimed essential tremors and bilateral CTS disabilities. To the extent that the Veteran contends that a medical relationship exists between his claimed essential tremors and bilateral CTS disabilities and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board’s categorical statement that “a valid medical opinion” was required to establish nexus, and that a layperson was “not competent” to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that essential tremors and bilateral CTS disabilities are not disabilities subject to lay diagnosis as these diagnoses require medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed essential tremors and bilateral CTS disabilities etiologies. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the November 2019 VA examiner provided detailed rationales in support of his opinions and cited to the relevant evidence. For this reason, the VA examiner’s opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran assertions that there is a relationship between his claimed essential tremors and bilateral CTS disabilities and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. In an April 2021 rating decision, the RO proposed to reduce the Veteran’s disability evaluation for his service-connected unspecified trauma and stressor related disorder from a 70 percent evaluation to a 50 percent evaluation. The AOJ noted that, with these proposed reductions, the Veteran’s combined rating will be reduced from 70 percent to 50 percent. To date, a decision on the proposed reduction has not been made. As a decision to proceed with the proposed reduction would clearly affect the claim for a TDIU, the Board finds that the claim is inextricably intertwined and a decision on the TDIU claim at this time would be premature. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The matters are REMANDED for the following action: 1. Adjudicate the proposed reductions of the Veteran’s service-connected unspecified trauma and stressor related disorder. 2. If any reduction in evaluation is made, provide the Veteran with notice of his appellate rights. 3. Then, readjudicate the claim for a TDIU. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.