Citation Nr: 21027695 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-10 078 DATE: May 6, 2021 ORDER The claim for service connection for essential tremor, left upper extremity is granted. The claim for service connection for essential tremor, right upper extremity is granted. FINDINGS OF FACT 1. Essential tremor left upper extremity had its onset during active service and is the result of active service. 2. Essential tremor, right upper extremity tremor had its onset during active service and is the result of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for essential tremor, left upper extremity are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for service connection for essential tremor, right upper extremity are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force on active service from February 1962 to February 1965. This appeal comes before the Board of Veteran's Appeals (Board) from an April 2017 rating decision of the Albuquerque, New Mexico. In April 2021, the Veteran testified before the undersigned Veterans Law Judge by videoconference. The appeal is being granted prior to association of the transcript with the file. However, in light of the favorable outcome, the Veteran is not prejudiced. The hearing transcript will be associated with the file at a later date. During the hearing, the question of whether the claims for essential tremor were in fact a claim for service connection of Parkinson's disease. The Veteran asserted the conditions were separate, and the medical evidence of record also distinguishes the claimed "action" tremors from the "resting" tremors of Parkinson's. Accordingly, the Board declines to take jurisdiction over a claim for that condition. The Veteran is encouraged to file a new claim should he desire to pursue that benefit. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Essential tremor is among those conditions, as organic diseases of the nervous system. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). "[L]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran argues his bilateral upper extremity tremors result from head injury he sustained during active service. He testified under oath he first noticed hand tremors during active service, such that it was difficult for him to sign his name. He testified that they continued to his discharge, persisted after his discharge, and have been continuously present to the present. The Veteran has described in writing and testified before the undersigned concerning two instances during active duty when he sustained injury to his head. In approximately June 1962, during a live fire exercise in tank training, the Veteran testified that a 105-millimeter found detonated prematurely while still in the breach of the tank's gun due to the barrel being overheated. The ensuing blast raised the tank up and then it dropped back down to the ground. The Veteran attested he struck his head twice on the turret as the tank moved. While he did not lose consciousness, he recalled having dry heaves, profuse sweating, and swelling where he hit his head. He further reported that all crew members had severe headaches following the blast, and many experienced hearing impairment. His headache lasted for two to three weeks, and he experienced tinnitus that has been continuously present from then to today. In addition, the Veteran reported a motor vehicle which occurred in 1963 and in which he described hitting his head. The Board finds the evidence supports his contentions. There is no dispute that the Veteran presently exhibits tremors in his bilateral upper extremities. The Veteran's treating VA neurologist, RSB, MD, provided letters in 2015 and 2018 showing the Veteran was diagnosed with postural tremor of bilateral arms and hands and Parkinson's disease. VA examinations in 2019 and 2020 show diagnoses of left and right upper extremity essential tremor and of Parkinson's disease. There is no dispute that the Veteran was treated on active service for a head injury. Service treatment records show he was treated for a laceration to his mid forehead following a motor vehicle accident. No loss of consciousness or headache was observed, but he was returned to his unit and instructed to see the physician in another one to two days. Service medical records do not show additional treatment for this event, nor do they show treatment following a tank training incident. However, service connection was awarded in 2020 for traumatic brain injury and migraine headaches as the result of the reported tank blast head injury and head injury resulting from a motor vehicle accident. Moreover, service personnel records show the Veteran was initially in training as an armor crewman until the end of June 1962, when he was redesignated as an ordnance supply specialist and sent for further training in supply and logistics. No reason for this redesignation in military occupational specialty (MOS) is provided, however it is consistent with the Veteran's testimony and statements concerning his continued training in supply shortly following the tank training incident. Finally, the Veteran is competent to state he first noticed his hand tremors during active service in 1962 or early 1963. The remaining issue before the Board is whether there is a causal nexus connecting current essential tremors of the bilateral upper extremities with active service. In support of his claim, the Veteran submitted the January 2018 medical statement of his treating neurologist, SP, MD. Dr. SP opined it is more likely than not that the temporal association of the development of the Veteran's hand tremors and subsequent Parkinson's disease is related to the acute head trauma during a tank explosion during active duty. As rationale, the neurologist stated there is significant supporting medical literature, and referenced several: (1) M Stern. Head trauma as a risk factor for Parkinson's disease. Movement Disorders, 6:1991; 2) SM Goldman, et al. Head trauma and Parkinson's disease risk in twins. An Neurol 60:2006; 3) FD Dick, et al. Environmental risk factors for Parkinson's disease and parkinsonism: the Geoparkinson study. Occ Environ Med 64:2007; 4) JK Krau J Jankovic, et al. Head injury and post-traumatic movement disorders. Neurosurgery 50:2002. In addition, Dr SP based his decision on his examination and treatment of the Veteran and on his expertise as a neurologist. The Board finds that Dr SP's opinion is probative in this case. The Veteran further submitted five lay statements dated in April 2017 and February 2018, proffered by friends and work colleagues who kept in touch with the Veteran from the time they met him to the present. In aggregate, the statements establish observations of the Veteran's left and right hands shaking and/or twitching since his discharge to the present and that such condition persists to the present, worsening over time. Of particular importance are three of the statements. Two witnesses, JP and ES, attested they knew the Veteran before he entered active duty, and observed he did not exhibit shaking or tremors then. Both stated they saw him closely following his discharge and observed his hands to twitch and frequently shake. Both observed the condition to persist and worsen to the present. ES further testified in a Decision Review Officer (DRO) hearing, stating she met the Veteran in 1961 and then again in 1965, just after his discharge. She stated the Veteran told her what happened, but she did not describe that in her letter, nor did the DRO notate she provided that information in the hearing. The third witness, SJ, stated he met the Veteran at work in 1978, and observed his hands to tremble. He attested the Veteran told him about the tank accident. He stated he understood the situation, as he had served as a turret repair technician in the U.S. Army Reserve and National Guard. SJ further attested that he observed the Veteran's hand trembling to worsen over the years. In contrast, 2019 and 2020 VA examiners offered opinions that it is less likely than not that the diagnosed bilateral upper extremity essential tremors were the result of active service, including head injury. The 2019 VA examiner's rationale was that there was no evidence of treatment for tremors during active service and no evidence between his discharge from active service and an initial report of tremors in 2014. The 2020 VA examiner provided no rationale. Neither VA examiner made any reference to the aforementioned lay witness statements or DRO hearing notes that the Veteran's hand shaking had been observed on his return from active service shortly after discharge and had persisted continuously to the present, worsening over time. Furthermore, neither VA examiner made any mention of the Veteran's treating neurologist's 2018 positive opinion relating the currently diagnosed essential tremors to his in-service head traumas. The 2019 and 2020 VA medical opinions did not address crucial lay observations provided by the Veteran's witnesses or the opinion of the Veteran's treating VA neurologist. Because of these omissions, the 2019 and 2020 VA examiners' opinions cannot be probative in this case. This leaves the 2018 opinion of the Veteran's VA treating neurologist, Dr SP, finding the diagnosed essential tremors of the left and right upper extremities to be the result of in-service head trauma. In sum, the record contains the 2018 positive opinion of the Veteran's VA treating neurologist, Dr SP, based on examination and treatment of the Veteran in addition to research and analysis of pertinent medical literature. In addition, the record contains the Veteran's sworn testimony that he first noticed his hand tremors during active service, and that they have persisted since then to the present. Corroborating his testimony, the Veteran's lay witnesses corroborate his testimony in that they have observed the Veteran's hands to tremor and twitch immediately after his discharge from active service and to the present, worsening over time. Finally, as noted above, the Veteran is service connected for traumatic brain injury, headaches and hearing impairment based on the same set of facts, i.e., the occurrence of two head injuries during active service. Thus, the probative medical and lay evidence of record corroborates the Veteran's assertions of the onset of hand tremors during active service, their persistence and continuance to the present, and their worsening over time to the ultimate diagnoses of essential tremors of the left and right upper extremities. Accordingly, service connection for essential tremor, left upper extremity, and essential tremor, right upper extremity is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.