Citation Nr: 21026285 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-61 180 DATE: April 30, 2021 REMANDED Entitlement to service connection for tremors is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from January 1983 to October 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal previously was denied by the Board in December 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, pursuant to a December 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s December 2019 decision and remanded the claim for action consistent with the terms of the parties’ JMPR. Entitlement to service connection for tremors. The Veteran contends that his tremors were incurred during his active duty service. For the reasons that follow, the Board finds that additional development is necessary prior to adjudication. In the December 2019 JMPR, the parties agreed that there were outstanding, relevant private treatment records that should be obtained. Specifically, the evidence of records indicates that the Veteran has sought treatment for his tremors from his primary care physician, Dr. A.K., as well as two private neurologists. While some records from Dr. A.K. are of record, they span from approximately 2009 to August 2015. However, a July 2018 letter indicates that the Veteran has been seeing Dr. A.K. since January 2008 to at least July 2018. With regards to the two private neurologists, a June 2010 letter shows that the Veteran initially sought treatment with a neurologist at Aiken Neuroscience, P.C., but no records from this facility are of record. Although the Veteran and Dr. A.K. have indicated that the provider has since retired, the records may still be available through the office. Additionally, an August 2015 private treatment record shows that the Veteran was referred to another neurologist, Dr. M, but no records from Dr. M. are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. Furthermore, the evidence of record indicates that the Veteran’s tremor condition may be a congenital condition. See June 2010 letter (noting that the Veteran likely has familial essential tremors); July 2016 VA treatment record (“history of tremor, probably essential familial tremor”); July 2018 letter from Dr. A.K. (noting the Veteran’s tremors are familial). Service connection is available for congenital diseases, but not defects, that first become manifest in service or that preexist service and are aggravated in service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990); VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). The Veteran has not yet been afforded a VA examination for his tremor condition. In light of the foregoing, the Board finds that a VA examination and opinion should be obtained to determine whether the Veteran’s tremor condition is a congenital disease or defect. If it is a congenital defect, an opinion is needed to address whether the currently diagnosed disorder represents a superimposed disease or disorder that began during service, or if it is a congenital disease, whether it existed prior to service and was not aggravated by service. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. A.K., Dr.M., and Aiken Neuroscience, P.C. Make two requests for the authorized records from aforementioned providers, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his tremor condition. The examiner must review the claims file and a copy of this Remand. The examiner is asked to: a) Opine whether the Veteran’s tremor condition is a congenital disease or a congenital defect. The examiner is advised that for VA purposes, a defect is a condition that can neither improve nor worsen. A congenital disease, for VA adjudication purposes, is a congenital condition that is subject to improvement and worsening. b) If the condition is a congenital defect, opine whether the Veteran has any other currently diagnosed disorder which represents a superimposed disease or disorder that began during service. c) If the condition is a congenital disease, opine whether the condition clearly and unmistakably (undebatable) preexisted the Veteran’s service. In so opining, the examiner shoulder address whether the reports of nervousness or shakiness in service represented initial manifestations of the condition. d) If the condition preexisted the Veteran’s service, opine whether it was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. In so opining, the examiner shoulder address whether the reports of nervousness or shakiness in service. e) If the Veteran’s tremor condition is not a congenital disease or defect, opine whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset in, or is otherwise related to, active service. The examiner also is asked to opine whether the reports of nervousness and/or shakiness in service were initial manifestations of the tremor condition. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.