Citation Nr: 21025690 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-24 458 DATE: April 28, 2021 ORDER Entitlement to service connection for tremors is denied. FINDING OF FACT Tremors did not manifest in service, did not manifest within one year of discharge from service, and are not otherwise attributable to service, to include exposure to herbicides. CONCLUSION OF LAW Tremors were not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112. 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1972 to January 1993, to include service within the Republic of Vietnam. This claim is on appeal from a June 2016 rating decision. In a February 2019 decision, the Board in relevant part denied service connection tremors. The Veteran subsequently appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). The parties to the appeal entered a December 2019 Joint Motion for Partial Remand (Joint Motion) to remand the claim for service connection for tremors, and the Court granted the motion in an Order issued later that month. In accordance with the December 2019 Joint Motion, the Board remanded the claim in May 2020 to obtain a new VA examination and opinion to determine the nature and etiology of the tremor disorder. The requested examination and opinion were obtained in October 2020. The Regional Office issued a Supplemental Statement of the Case (SSOC) in November 2020 and recertified the appeal to the Board. The Board remanded the claim again in a December 2020 decision to obtain a new examination and medical nexus opinion, determining that the October 2020 opinion did not fully comply with the terms of the December 2020 Joint Motion or the Board’s May 2020 remand directives. A new VA examination and medical opinion were obtained in February 2020. The Regional Office issued another SSOC in February 2021, and the appeal was recertified to the Board. 1. Service connection for essential tremors. The Veteran contends that his essential tremors are caused by his exposure to herbicides during his service in the Republic of Vietnam. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime). To establish entitlement to service-connected compensation benefits, 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 -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era beginning in January 1962 and ending in May 1975 shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. As an initial matter, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during the Vietnam Era. The Veteran’s DD Form 214 shows that the Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal. The Regional Office verified the Veteran’s Naval service to include “boots on the ground” in the Republic of Vietnam and conceded exposure to herbicide agents within a January 2014 rating decision. The Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam. Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). The Board notes that tremors are not among the diseases listed in 38 U.S.C. § 1116 or C.F.R. § 3.309 (e). Thus, the regulations and statutes pertaining to presumptive service connection based on exposure to herbicides are not applicable to the claim. This does not preclude the Veteran from establishing service connection for tremors with proof of direct causation, to include as due to his exposure to herbicides. Combee v. Brown, 34 F. 3d 1039(Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). After reviewing the evidence, the Board concludes that service connection for tremors is not warranted. Service treatment records do not contain complaints, treatments, or diagnoses for tremors or other relevant neurological problems. The December 1992 retirement examination shows a clinically normal evaluation of the extremities and neurologic systems, and he denied any history of relevant symptoms on the December 1992 report of medical history. Private neurology treatment records obtained by the Social Security Administration from June 2006 shows complaints of a tremor when the Veteran tried to write and a diagnosis of “intentional tremor, probably familial.” A treatment note from August 2006 shows the Veteran reported that his tremors bothered him usually when he had caffeine, which would affect his right hand by shaking, but would not affect his functioning otherwise. In June 2009 and August 2009, the Veteran reported increasing tremors in his hands, which caused problems with writing, which get worse when he has caffeine. Intentional tremor was diagnosed. VA treatment records from March 2016 show the Veteran complained of worsening tremors and indicated he had been seen for 10 years by a private neurologist for this issue. Essential tremors were diagnosed. Private neurology records dated February 2017 show the Veteran reported an onset of tremors and his head at age 50 and more recently in his legs. We note that the Veteran was 62 at the time of the appointment. He was assessed with essential tremor. A May 2017 psychiatry treatment note shows the Veteran reported his tremor was getting worse and that it was spreading to other extremities and his neck, and the treating psychiatrist noted the Veteran’s neck shaking. In a November 2017 brief, the Veteran’s attorney indicates that the Veteran had experienced extreme tremors in his hands and arms between 2004 and 2005, which affected his ability to write and grasp things, and was granted SSA benefits for his diagnosed tremors. The Veteran’s attorney also cited a peer-reviewed study within the Movement Disorders medical journal, which shows increased rates of essential tremors in individuals exposed to dioxins. More recent private neurology records continue to show a diagnosis of benign familial essential tremor being treated with topiramate. See, e.g., July 2018, January 2019 Neurology Notes. The Veteran was afforded a VA-authorized examination in December 2017 and was diagnosed with essential tremor. The examiner reviewed available neurology notes and noted an onset of age 50, which was approximately 2005. The Veteran reported tremors of the hands, legs, and head. He was provided a VA examination in October 2020 where he was diagnosed with essential tremor and reported essentially the same onset and symptoms. The December 2017 and October 2020 examiners provided negative nexus opinions. Regarding the December 2017 opinion, the December 2019 Joint Motion for Partial Remand notes that the examiner did not specifically discuss the medical basis for her rationale and, while the examiner indicated that current peer reviewed medical literature formed the basis of the opinion, did not cite or discuss any such literature or medical principles in the provided rationale. The Board remanded to claim to obtain a new opinion in May 2020. Of note, the Board specifically instructed that, in determining whether a tremor disorder was related to herbicide exposure, the examiner was “not to rely solely on whether the disease is one for which a “presumption” is established and, instead, state whether it is a result of Agent Orange exposure even though it is not on the list of “presumptive” diseases.” Regarding the October 2020 opinion, the Board determined the opinion was not fully adequate in our December 2020 remand. First, the Board found the examiner had failed to comply with the December 2019 Joint Motion, which directed the examiner to explain why tremors, if associated with Agent Orange, could not present more than 10 years after exposure to Agent Orange. Second, the Board found the examiner had relied solely on whether the tremors were a disease for which a presumption is established when she cited an Institutes of Medicine update in support of the negative opinion, which was in direct contradiction of the previous May 2020 remand instructions. The October 2020 examiner cited the National Academy of Sciences’ Institute of Medicine Veterans and Agent Orange: Update 2002 in rendering her opinion. Specifically, the examiner stated that according to the Institute of Medicine, there is currently insufficient evidence support an association between Agent Orange exposure and neuropsychiatric disorders. Citing the Institute of Medicine’s Veterans and Agent Orange update did not contradict the Board’s May 2020 remand instructions; whether essential tremors are a disease for which a presumption is established was irrelevant to the Institute’s conclusion that there was insufficient evidence support an association between Agent Orange exposure and neuropsychiatric disorders. However, the examiner did not discuss why tremors could not present more than 10 years after exposure to herbicides as instructed by the Joint Motion. In addition, the Veterans and Agent Orange: Update 2002 was 18 years old at the time the opinion was offered and was outdated regarding whether there was any association between neuropsychiatric disorders and herbicide exposure. Given the above, neither the December 2017 nor the October 2020 nexus opinions will be further relied upon in deciding the Veteran’s claim. The Veteran was provided another VA examination in February 2021. Essential tremor was diagnosed. The Veteran reported that the condition began in December 1990 with shaking in his hands. The examiner concluded the tremors were less likely than not incurred or caused by Agent Orange during service. The examiner noted that medical records contained no clinical notes of tremors during service, and the earliest mention of essential tremors in treatment records was in May 2016. The examiner noted that in a January 2014 C and P examination the Veteran reported he had consumed alcohol since age 17 years old and continued to consume 2 drinks per day, and that clinical notes in August 2017 reported the Veteran was a recovering alcoholic. Current medical literature reported “some alcoholics get “the shakes” when they are going through withdrawal and this temporary symptom can become permanent in some cases... known as essential tremor, and most commonly affects the limbs, head or speech.” The examiner explained that, according to the Institutes of Medicine there is currently insufficient evidence to support an association between Agent Orange exposure (herbicides) and essential tremor disorder, regardless length of time apart from exposure to symptoms. The Veteran reported having tremors for 10 years in 2016 (starting 2006) and yet he was able to carry on a job as disc jockey, handling disc jockey table for 36 years, and yet he has been an alcoholic since his teen years. Therefore, the Veteran’s tremors are not due to alleged Agent Orange exposure but from his alcoholism that dated back to before his active service and continued to present day. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion comes primarily from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. “It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.” Id. at 304. Here, the Board finds the February 2021 opinion probative medical evidence as to whether the Veteran’s tremors are due to service, including herbicide exposure. The examiner rendered the opinion after reviewing the claims file and relevant medical records and after interviewing the Veteran. The examiner noted the Veteran’s that the Institute of Medicine’s studies showed insufficient evidence to support an association between Agent Orange exposure (herbicides) and essential tremor disorder, regardless length of time apart from exposure to symptoms. Reviewing the most recent Institute of Medicine study, Veterans and Agent Orange: Update 11 (2018), we note the Institute found limited or suggestive evidence of an association between herbicides and Parkinson disease and diseases that present with Parkinson-like symptoms. The Veteran does not have Parkinson’s disease or any other such disease. The only references to tremors related to symptoms of Parkinson’s disease, which the Veteran does not have. The Update does not indicate any relationship between herbicides and tremors alone. There are inconsistencies in the examiner’s opinion. The examiner determined the earliest evidence that the Veteran had tremors was May 2016 VA treatment records, indicating that she did not review SSA medical records showing complaints of tremors in 2006. Such does not render the opinion inadequate or non-probative. The Veteran’s first reports of tremors were still many years after he was exposed to herbicides and separated from service, and the 2018 Institute of Medicine Update silent regarding any association between herbicides and essential tremors. The Veteran has not submitted a medical opinion contradicting the February 2021 VA opinion that tremors are unrelated to herbicide exposure. He has been accorded ample opportunity to present competent medical evidence in support of his claim and has not done so. See 38 U.S.C. § 5107 (a) (it is the claimant’s responsibility to support a claim for VA benefits). The Veteran’s representative cited to a medical article titled “Dystonia and tremor following exposure to 2,3,7,8-tetrachlorodibenzo-p-dioxin” that was published in the Movement Disorders journal in 1987. The article pertains to 47 railroad workers who were exposed to polychlorinated phenols, including dioxin (TCDD), during 1979 while cleaning up a chemical spillage following damage to a tank car. The workers were followed medically for the subsequent 6 years, and 35 developed intentional tremors resembling benign essential tremor. A medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509 (1998). Here, the treatise evidence submitted by the Veteran does suggest a relationship between essential tremor and exposure to dioxin. Such evidence is relevant but does not provide a specific causal connection in the Veteran’s case. Here, the study pertains to railroad workers who were exposed to polychlorinated phenols following a chemical spillage rather than individuals exposed to Agent Orange or another herbicide agent. This information is not accompanied by any corresponding clinical evidence or competent medical nexus opinion specific to the Veteran. Neither the Veteran nor his attorney have been shown to be competent to provide such an opinion. We note that the individuals in the study we followed medically for six years, suggesting they developed tremors within six years of exposure to dioxin, whereas the Veteran developed tremors decades after his herbicide exposure. Additionally, although the National Academy of Sciences Veterans and Agent Orange: Update 11 (2018) found limited or suggestive evidence of an association between herbicides and Parkinson disease and diseases that present with Parkinson-like symptoms, the Veteran has not been diagnosed with such a disease. We find that the submitted study does not outweigh the remaining evidence of record, including the February 2021 VA nexus opinion. The Board has also considered the lay statements of record. In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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 addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran and his representative have asserted the Veteran’s tremors are related to his in-service herbicide exposure. The Veteran is competent to report that he has a current diagnosis, as is documented in the record, and is competent to describe the nature and onset of his symptoms. however, the Board finds that neither the Veteran nor his representative are competent to opine as to the etiology of the condition. The issue of whether his tremors are etiologically related to exposure to herbicides is not within the competence of a layperson, and there is no indication that the Veteran has been told by a qualified medical professional that his tremors are due to his exposure to herbicides or otherwise related to his military service. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). We note the Veteran’s report at the February 2021 VA examination that his tremor symptoms began in December 1990, which was during his service. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). The Veteran’s statement that his tremors began in 1990 is inconsistent with the remainder of the record, including his prior lay statements. Service treatment records are silent regarding any symptoms or diagnoses relating to tremors, and clinical evaluation of the neurologic system was normal. As noted above, the Veteran had previously reported that his tremors began when he was approximately 50 years old, and his attorney has reported an onset in approximately 2004 or 2005. Private medical records state his tremors began in 2005 or 2006. The Veteran’s recent statement that his tremors began in 1990 is not credible. The Board also finds that the multi-year gap between the Veteran’s exposure to herbicides and his discharge from service, and the documented onset of his symptoms in 2004 or 2005, is viewed as a factor weighing against this claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, certain chronic diseases, to include organic diseases of the nervous system, 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; 38 C.F.R. §§ 3.307, 3.309. Alternatively, such chronic diseases may also be linked to service based upon continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Assuming the Veteran’s tremors are an organic disease of the nervous system, tremors were not noted during service or within one year of separation. Nothing suggests he had characteristic manifestations to identify a disease entity during that time frame. Rather, the more probative medical and lay evidence reflects an onset of tremors around 2004 at the earliest, over a decade after the Veteran separated from service. In sum, the more credible and probative evidence establishes that the Veteran’s tremors were not manifest during service, did not manifest within one year of separation, and are not related to his in-service exposure to herbicides. The Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for tremors. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The claim for service connection for tremors is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.