Citation Nr: 21026816 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-14 058 DATE: May 4, 2021 ORDER A rating in excess of 20 percent for type II diabetes mellitus (DM II) is denied. Service connection for essential tremors/Parkinson's disease is denied. FINDINGS OF FACT 1. The Veteran, without good cause, failed to appear for a VA examination scheduled to reassess the severity of his DM II. 2. The Veteran, without good cause, failed to appear for a VA examination scheduled to determine the etiology of his claimed essential tremors/Parkinson's disease. 3. The preponderance of the evidence weighs against finding that the Veteran's essential tremors are causally related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating in excess of 20 percent for DM II. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for service connection for essential tremors/Parkinson's disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to September 1974 in the U.S. Army. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. These matters were previously before the Board in August 2018 and September 2020. In September 2020 the Board remanded these matters for additional evidentiary development including scheduling the Veteran for VA examinations. The record reflects that these examinations were canceled at the Veteran's request and he did not communicate any intention to attend rescheduled examinations in connection with these claims. See February 2021 Exam Scheduling Request Form. Accordingly, the September 2020 Board remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. A rating in excess of 20 percent for DM II. According to VA regulation, when a claimant, without good cause, fails to report for a necessary examination scheduled in conjunction with a claim for an increase in the rating for a service-connected disability, the claim shall be denied. See 38 C.F.R. § 3.655 (directing the mandatory denial in this circumstance given the express "shall" language used in this governing VA regulation). When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See Turk v. Peake, 21 Vet. App. 565 (2008). See also Rouse v. Wilkie, 2020 U.S. App. Vet. Claims Lexis 1479 (July 31, 2020). In the present situation, the Board had found that the examination for DM II was necessary to reassess its severity. The Veteran has not provided justifiable reason or explanation (i.e., the required good cause) for his failure to report for that examination which was scheduled in February 2021 following the Board's remand of this claim. Therefore, his claim for an increased rating for his DM II must be denied according to § 3.655. 2. Service connection for essential tremors/Parkinson's disease Legal Criteria Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. Factual Background & Analysis In an April 2012 statement the Veteran communicated that his tremors may be related to a sharp blow to the head incurred during service. An April 2015 VAMC treatment note states that the Veteran has had hand tremors since his DM II diagnosis in 1998. The Veteran was noted to have no Parkinsonian features and was advised that his hand tremors were unrelated to an in-service head trauma. The Veteran was advised that his tremors may be temporarily worse when under stress, anxiety, nervousness, fatigue, or exertion. On September 2019 VA examination the Veteran was noted to have tremors with no features or symptoms of Parkinson's disease. Historically, his tremors were treated with Propranolol but was not noted to be on any current medications for tremors. The examiner remarked that his tremor was noted to be an "intentional tremor" that is very mild. The examiner opined that this disability is not related to herbicide exposure during service because the medical literature does not support a causal relationship between these factors. As discussed, the Board remanded this matter in September 2020 for a new VA examination and nexus opinion based on medical evidence suggesting proximate causation or aggravation of essential tremors by a service-connected psychiatric disability or DM II. However, the Veteran voluntarily canceled this scheduled VA examination without explanation and did not express that he would attend a rescheduled examination. Consequently, VA regulation dictates that the Board adjudicate this matter based on the evidence of record. See 38 C.F.R. § 3.655. The Board has carefully reviewed the lay and medical evidence of record and finds that the most probative medical evidence is weighted against finding that the Veteran's essential tremors are causally related to his service or a service-connected disability. In that regard, the April 2015 VAMC treatment record reflects that a qualified medical professional found no causal relationship between the Veteran's tremors and claimed head trauma suffered during his active duty service. Further, the September 2019 VA examination concluded that the Veteran has an "intentional tremor" that is very mild. The examiner opined that this disability is not related to herbicide exposure during service because the medical literature does not support a causal relationship between these factors. Regarding secondary service connection, the April 2015 VAMC treatment record notes some correlation between the onset of the Veteran's service-connected DM II and the onset of his tremors, in addition to suggesting that his tremors my temporarily worsen when triggered by symptoms of his service-connected psychiatric disability. While this evidence is suggestive of a potential correlation it by itself does not rise to the level of demonstrating that his service-connected DM II and/or psychiatric disability proximately caused or aggravated his essential tremors. 38 C.F.R. § 3.310. The Board acknowledges the Veteran's lay contention that his essential tremors are causally related to his service. As a lay person, the Veteran does not have the training or expertise to render a competent nexus opinion regarding the etiology of a complex neurological disability which is more probative than the VA examiner's opinion on this issue because this is a medical determination that requires specific training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Further, there is otherwise no opinion or treatment record authored by a VA or private medical professional which supports the Veteran's contention that his essential tremors are causally related to his service or a service-connected disability. Consequently, the Board finds that the Veteran's contention regarding the etiology of his essential tremors are outweighed by the findings of the competent medical professionals of record. See Id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). (Continued on the next page) In sum, the Board finds that the weight of the competent and probative evidence is against a finding of service connection for essential tremors/Parkinson's disease. 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. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.