Citation Nr: 21040754 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-59 733 DATE: July 6, 2021 ORDER Entitlement to service connection for essential tremors secondary to ischemic heart disease/coronary artery disease is granted. FINDING OF FACT It is more likely than not that the Veteran's essential tremors were aggravated beyond their normal progression by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for essential tremors have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for essential tremors is granted Entitlement to service connection may be granted on either a direct or secondary basis. 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). Entitlement to service connection on a secondary basis requires (1) evidence of a current non-service-connected disability; (2) evidence of a separate service-connected disability; and (3) medical nexus evidence establishing that the service-connected disability was caused or aggravated by the current non-service-connected disability. 38 C.F.R. § 3.310(a); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Veteran claims entitlement to service connection on a secondary basis. He asserts that his essential tremors were aggravated by his service-connected heart diseasespecifically, that his tremors permanently worsened beyond their normal progression after he suffered a myocardial infarction in October 2006. The Veteran's essential tremors are well-documented in his medical treatment records, and the diagnosis of essential tremors was confirmed by VA examinations in April 2013, December 2013, and August 2018. The Veteran has been awarded service connection for ischemic heart disease/coronary artery disease, to include his past myocardial infarction, since April 2012. The first two elements of secondary service connection are met; the remaining issue is whether there is a connection between the Veteran's heart disease and his essential tremors. The record contains five medical opinions on the claimed nexus between the Veteran's heart disease and his essential tremorsthree from VA Compensation and Pension examiners, one from a VA cardiologist who treated the Veteran, and one from a private physician at a neurology clinic. The Board will consider each of these opinions in chronological order. The first nexus opinion comes from the April 2013 VA examination. The examiner gave the following opinion on the issue of aggravation: The other issue is whether the tremors have become worse following his myocardial infarction. This is not possible to say as there is no documentation of severity as he was not treating for the tremors until some time following the myocardial infarction, he asked about stress influencing tremor and I told him that it is common for stress to aggravate tremor. It should also be pointed out that this pattern of tremor becomes more prominent with age. It is further my opinion, based on my experience as a neurologist, lack of medical evidence in the literature, and discussion of this issues with a movement disorder specialist not treating him that there is no basis to link progression in his tremor with his myocardial infarction, or in other words, his tremors were not aggravated by his myocardial infarction. The above is stated to a reasonable degree of neurological certainty. Also to clarify, the above captioned individual is not my patient. The Board finds two main deficiencies with this opinion. First, the fact that the Veteran did not immediately seek treatment for his worsening tremors is not in and of itself a sufficient basis for concluding that there is "no documentation of severity." Treatment records from June 2009, April 2012, and November 2012 (just to list records that existed at the time of the examination) all indicate that the Veteran's tremors worsened after his myocardial infarction in October 2006. None of these records are directly addressed by the examiner. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner also fails to address lay testimony from the Veteran and his spouse that the increase in severity of his tremors happened immediately following his myocardial infarction. While the Veteran is not competent to testify as to whether his tremors were actually aggravated by his myocardial infarction, (as this is a question requiring medical expertise,) the tremors themselves are a symptom readily observable by a layperson; the Veteran is thus competent to testify about the severity of his tremors over time. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Second, the April 2013 examiner never statesor even checks a box that statesthat it is less likely than not (or less than 50 percent probable) that the Veteran's essential tremors were aggravated by his myocardial infarction. The examiner says only that their conclusions are "stated to a reasonable degree of neurological certainty." "Reasonable degree" is vague language that does not allow the Board to confirm that the opinion carries the degree of certainty required to form the basis of a decision. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, the fact that the examiner goes on to hedge the opinion in the next sentence ("clarifying" that the Veteran is "not [their] patient," something that typically goes without saying in Compensation and Pension examinations scheduled by VA) is also potentially suggestive of a lack of confidence in the opinion. For the above reasons, the Board finds that the April 2013 VA medical opinion is an inadequate basis for a decision, and does not afford it probative weight. The next medical opinion of record comes from the December 2013 VA examination. This opinion addresses only the issue of causation, and not aggravation; in fact, the last line of the examination report states that "no issues for aggravation [were] requested." The December 2013 examiner concludes that the Veteran's essential tremors could not have been caused by his service-connected heart disease, as the Veteran first developed tremors several years before his myocardial infarction in October 2006. However, as the Veteran points out in his November 2014 Notice of Disagreement, he has never argued that his essential tremors were caused by a service-connected disability, only that they were aggravated beyond their natural progression by his myocardial infarction. The December 2013 examination is therefore irrelevant to the present claim. The third medical nexus opinion comes from the Veteran's treating cardiologist, in March 2015. The cardiologist described the Veteran's essential tremor as having a "sudden progression at time of cardiac arrest, followed by a gradual progression after." The cardiologist went on to conclude that, given the sudden progression of "a neurologic problem" (the Veteran's tremors) following "prolonged resuscitation in 2006," it was at least as likely as not that the Veteran's essential tremors were made worse by his cardiac arrest. As this opinion comes from a medical specialist with relevant expertise, supports its conclusion with adequate reasoning, and expresses the required degree of certainty, the Board finds that it merits probative weight. The fourth medical nexus opinion is an August 2018 note from one of the Veteran's other treating physicians. The full text of this note reads: "[The Veteran] is under my care for essential tremors. I do believe the tremors have exacerbated from [sic] his cardiac arrest." While the Board acknowledges this physician's medical expertise and firsthand experience treating the Veteran, this opinion contains no rationale for its conclusion, and therefore does not merit probative weight. The fifth and final medical nexus opinion comes from an August 2018 VA examination. As in the December 2013 VA examination, this opinion only addresses the issue of causation (concluding that the Veteran's tremors were not caused by his heart disease, as they predate his myocardial infarction) and does not consider aggravation. This opinion is also irrelevant to deciding the issue of aggravation. (Continued on the next page) The Board finds that the most probative evidence regarding whether the Veteran's essential tremors were aggravated by his myocardial infarction is the March 2015 opinion from his treating cardiologist. Weighing all the evidence of record, the Board finds it is more likely than not that the Veteran's essential tremors were aggravated by his service-connected heart disease. Entitlement to service connection for essential tremors is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.