Citation Nr: 21028014 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-37 106 DATE: May 10, 2021 REMAND Entitlement to service connection for tremors of the right upper extremity is remanded. Entitlement to service connection for tremors of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In his July 2016 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge; however, he withdrew that request in December 2019. See 38 C.F.R. § 20.704(e). In February 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See February 2021 supplemental statement of the case. 1. Entitlement to service connection for tremors of the right upper extremity is remanded. 2. Entitlement to service connection for tremors of the left upper extremity is remanded. Pursuant to the February 2020 Board remand, the Veteran underwent a VA central nervous system and neuromuscular diseases examination in February 2021. The examination report indicated that the Veteran has no diagnosable condition, and noted the following: The Veteran stated that he has had an essential tremor since he came home from Vietnam. Although the veteran complains of bilateral tremor, there were no objective findings on examination to support this diagnosis. The [V]eteran was also seen outside smoking with no signs of tremor. No diagnosis warranted. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Pursuant to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the requirement of a current disability is satisfied when a claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. In this case, VA received the Veteran's claim for a bilateral upper extremity disability in May 2014, and the record shows that the Veteran is shown to have had bilateral upper extremity tremors during the appeal period. For instance, VA treatment records dated in October 2015 and October 2016 noted that the Veteran had bilateral upper extremity tremors. Moreover, an October 2013 VA treatment record noted that the Veteran experienced significant tremors bilaterally. However, the February 2021 VA examiner did not make an express finding that that the diagnosis of bilateral upper extremity tremors as shown by VA treatment records during the appeal period was incorrectly rendered. In the absence of a finding that the above-referenced diagnosis as shown by VA treatment records during the appeal period were rendered in error, the examiner should have provided an opinion as to the etiology of each such diagnosis, even if the Veteran does not currently carry this diagnosis. A remand is required in order to obtain an addendum opinion to address this duty to assist deficiency. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran, and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the February 2021 VA examination report or a suitable substitute if that VA examiner is unavailable) for the purpose of preparing addendum opinions. If the examiner finds that another examination of the Veteran is required, one should be undertaken. The examiner is requested to address each of the following items: (a.) Does the Veteran have any neurological disorder of the upper extremities, or has he ever had any such diagnosis during or proximate to the appeal period? In answering this question, the examiner must address the documented history of the Veteran's bilateral hand tremors since October 2013. If it is the examiner's opinion that any of the above-referenced diagnosis of bilateral upper extremity tremors, as shown in the Veteran's VA treatment records, was rendered in error, the examiner should provide an opinion with a rationale as to why this is so. (b.) For any diagnosis rendered, the examiner is requested to opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disorder was incurred in service, or is otherwise related to service, to include presumed exposure to herbicidal agents? A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.