Citation Nr: 21042564 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-49 062 DATE: July 13, 2021 ORDER Entitlement to service connection for essential tremors claimed as Parkinson's disease is denied. FINDING OF FACT The probative evidence does not establish that the Veteran's essential tremors claimed as Parkinson's disease is at least as likely as not related to an in-service injury, disease, or event, to include Agent Orange exposure; or secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for essential tremors claimed as Parkinson's disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from May 1966 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. In December 2018, this matter was remanded for further development, to include obtaining a VA examination and opinion. 1. Entitlement to service connection for essential tremors claimed as Parkinson's disease Generally, to establish direct service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his tremors are a result of exposure to herbicides; and that such tremors are an early manifestation to Parkinson's disease. The service personnel records show the Veteran served in Vietnam from October 1966 to November 1967 and is therefore presumed to have had herbicide exposure. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Post-service VA treatment records documents essential tremors; however, no specific diagnosis of Parkinson's disease. The Veteran submitted medical literature that shows essential tremors is a symptom of Parkinson's. The Veteran has also alternatively claimed that his tremors are secondary to his service-connected disabilities. Private treatment records include a November 2018 treatment record that documents the Veteran has had tremors for many decades. The examiner indicated that the Veteran has clear cut essential tremor and will not require further diagnostic work-up. She notes that the DAT scan was negative for Parkinson's disease. Pursuant to the December 2018 Board remand, the Veteran was examined in November 2019. The VA examiner noted the Veteran does not have Parkinson's disease. He indicated that he had reviewed the Veteran's entire claims file and concluded that the majority of evidence reviewed does not suggest a nexus link between the claimed tremors and military service and/or herbicide exposure, therefore it is less likely than not due to, caused by, or related to military service and/or herbicide exposure. The examiner reasoned that according to peer review articles in the medical literature essential tremor is a nervous systems (neurological) disorder that causes involuntary and rhythmic shaking. It can affect almost any part of the body, but the trembling occurs most often in the hands especially when one does simple tasks, such as drinking from a glass or tying shoelaces. Essential tremor is usually not a dangerous condition, but it typically worsens over time and can be severe in some people. The examiner noted that other conditions do not cause essential tremor, although essential tremor is sometimes confused with Parkinson's disease. Essential tremor can occur at any age but is most common in people age 40 and older. The examiner also opined that the tremors have not been caused or aggravated by the service-connected disabilities. He reasons that according to peer review articles in the medical literature type II diabetes mellitus, chronic anxiety disorder, and heart disease are not known to cause or aggravate essential action tremors. Although the evidence shows the Veteran has been exposed to Agent Orange, the Board finds that service connection is not warranted on a presumptive or direct basis in this case. In this regard, the Veteran does not have Parkinson's disease, and the competent evidence reveals that the Veteran's current essential tremors manifested many years after service and that any current nerve condition is likely caused by other factors besides herbicide exposure. There is no indication of symptoms in his service treatment records, nor is there an indication of complaints or diagnosis until many years after his separation from service. Although the Veteran's exposure to herbicides, including Agent Orange, is presumed, there is no competent evidence that he had a requisite disability, namely Parkinson's disease, in order to qualify for the presumption of service connection. See 38 C.F.R. §§ 3.307(a)(6)(ii) and 3.309(e). Further, there is no indication that the Veteran's current essential tremors are secondary to a service-connected disability. The Board finds that the VA examiner's opinions are the most probative evidence of record as to the etiology of the essential tremors. The examiner's opinions are plainly supported by the evidence of record. Indeed, the examiner indicates the essential tremors is not shown in the treatment records to be due to an in-service illness, injury, or event; or his service-connected diabetes mellitus, heart, and psychiatric disabilities. The examiner indicates that the essential tremors are an involuntary condition that affects some people. He also indicated that a review of the medical literature does not show that the Veteran's service-connected disabilities, type II diabetes mellitus, chronic anxiety disorder, and heart disease cause or aggravate essential tremors. Although the Veteran believes his tremors are related to his military service or service-connected disabilities, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred that led to his essential tremors; or that the current tremors are secondary to his service-connected disabilities. Further, he is not competent to opine that his current tremors were directly due to service or secondary to service-connected disabilities. He has not been shown to have the requisite expertise to opine on a complex medical matter. As such, his statements to that effect are afforded little probative value. The Board appreciates the Veteran's sincere testimony regarding his Vietnam Service and his tremors. However, absent a competent opinion linking these tremors to service or a service-connected disability, service connection must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.