Citation Nr: 22017022 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-17 953 DATE: March 23, 2022 ORDER Entitlement to service connection for essential tremors is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his essential tremors are at least as likely as not related to service. CONCLUSION OF LAW 1. The criteria for service connection for essential tremors have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.7, 3.102, 3.303(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to March 1968. His Military Occupational Specialty (MOS) was as a nuclear trained submarine machinist mate and was also trained in pump maintenance, refrigeration, and air conditioning while serving on the U.S.S. James K. Polk Nuclear Submarine. See VA Form DD Form 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. In December 2018, January 2021, and November 2021, the Board remanded this issue for further development. Unfortunately, that development was not satisfactorily completed. Stegall v. West, 11 Vet. App. 268 (1998). The Board does not wish to remand this claim again to obtain new VA opinions and potential negative development. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2021). 38 U.S.C. § 7107(a)(2) (2018). 1. Entitlement to service connection for essential tremors is granted. The Veteran is seeking to establish service connection for essential tremors. Specifically, he contends that his essential tremors are the result of exposure to second-hand cigarette smoke in the confined setting of a submarine and/or exposure to environmental contaminants present on a submarine, such as harmane, fresh epoxy paints, fresh contact adhesives, oil vapors, lithium bromide/Freon fumes, hydrocarbons, grinding/welding hull materials, high CO2 levels, etc. Alternatively, the Veteran contends that his disability his secondary to or aggravated by his service-connected acquired psychiatric disorder. See February 2022 Correspondence. Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A Veteran is presumed to be sound upon entry into service when no preexisting disability is noted during the entrance examination, except when clear and unmistakable evidence demonstrates that a disability preexisted service. 38 U.S.C. § 1111. The burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both (1) preexisting and (2) not aggravated by service. 38 U.S.C. § 1153. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). 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 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). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019). Factual Background Turning to the evidence of record, the Veteran's service treatment records (STRs) do not show that his tremors were noted in his entrance examination. In December 1999, the Veteran reported frustration with his tremor which had been present as far as he could remember. See December 1999 Medical Records (associated with the claims file in May 2013). Medical records for October 2000 noted the Veteran's tremor developed as a young man and had progressed over his life, affecting the use of his hands. He also reported the tremor worsened with excitement or following physical exertion. See October 2000 Medical Records (associated with the claims file in May 2013). In January 2008, the Veteran reported having a tremor in both hands since he was 5 or 6 years old, which his mother, grandmother and great grandmother had too. The Veteran reported remembering friends making jokes about his tremor in his early 20's. The physician, Dr. R, agreed with the diagnosis of essential tremor / benign familial tremor. See January 2008 Medical Records. Medical records for February 2008 show the Veteran's tremors were characterized as familial. Dr. R noted no signs or symptoms suggestive of idiopathic Parkinson's disease or Parkinson's plus syndrome. See February 2008 Medical Records. In October 2010, the Veteran's Dr. R noted that he thought his tremors were related to his unstable thyroid problems and the side effects of his medication; as the Veteran reported that medication for his thyroid problem made the tremor significantly worse. See February 2008 Medical Records (dated October 2010). In April 2011, the Veteran's medical provider, Dr. V, noted the Veteran did not give a convincing family history of tremors. See August 2011 Medical Records (associated with the claims file in December 2011). In a lay statements dated August 2011; the Veteran's brother certified that the Veteran's tremors began in his 40's. A friend who has known the Veteran since around 1989, certified that how he had observed the tremors worsen. Another friend of the Veteran certified he had seen the tremors progress and has known the Veteran since 1975. In November 2016, a medical opinion, Dr. V., dated October 2016, was associated with the claims file. The physician stated that he had treated the Veteran since 1970 for allergic rhinitis. The physician noted that the majority of cases of essential tremor are familial but that this was not the case with the Veteran who had no other family member diagnosed with essential tremors. The physician further noted that the second most common cause of essential tremors is environmental exposure to toxins and the third most common cause is the association of secondhand smoke and the filters used in the submarines during the Veteran's service. The physician noted that certain organophosphates, which are found in hydraulic oil vapors, can inhibit important enzymes in the nervous system causing multiple symptoms including tremors within a few hours of breathing, swallowing or following skin contact with the substance. The physician also noted that filters in submarines were modified in 1992, to better filter the exhaled CO2 and other vapors. However, the Veteran's service pre-dated this improvement. The physician opined that the toxins to which the Veteran was exposed in service, as well as secondhand smoke contributed to his development of essential tremor as he did not have a familial history of the condition. At his August 2018 hearing, the Veteran testified that while he was growing up, he was a very high-strung person and that if he got very excited his whole body would react. However, that in service, he did not have a problem related to nervous shakes or anything similar. He explained that he did not really have a problem aside from shaking for a few minutes if he got very excited. He explained that he felt his tremors start around 1990 and that a doctor in 1992 noticed them and diagnosed them as essential tremors. At the time, the tremors were minor but that as time has progressed, they have worsened. In a November 2019 statement, the Veteran tried to summarize his assertions and supporting evidence, in favor of his claim of service connection for essential tremors. In particular, the Veteran noted that the cause of essential tremors remains unknown and that there was controversy in the medical community regarding the familial (i.e. hereditary) component of the condition. The Veteran noted that to date in his family, out of 4 living generations and 4 passed, he is the only person to have been diagnosed with the condition. The Veteran also pointed out how his entrance examination, as well as his separation examination, and other examinations while in service, did not note any tremors. He also explained that the tremors he experienced during his childhood were only present if he became overexcited and went away shortly after they began. As a child he was diagnosed with "excess energy" attributed to his being a redhead. The Veteran also pointed out that although his brother had been diagnosed with restless leg syndrome; that the condition was not related to essential tremors but rather it is associated with Parkinson's. He also referred to his childhood symptoms as "shakes" which he believes should not be taken into consideration, as he was in strong condition when he entered service. In February 2020, the Veteran was administered a Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaire (Nervous System DBQ). The examiner noted the Veteran's diagnosis of essential tremor. Following the examination, the examiner opined that it was less likely than not that the Veteran's tremors were related to service. In favor of his opinion, the examiner noted that the Veteran had reported to other medical providers that his tremors had begun in childhood and that his mother, grandmother and great grandmother had had it too. The examiner also noted that the Veteran had reported to his medical providers that he remembered his friends making jokes about his tremor in his early 20's. The examiner also opined that the Veteran's tremor is less likely as not related to his service, to include exposure to secondhand smoke or to environmental toxins aboard submarines from 1965 to 1967. The examiner provided as rationale that the Veteran had reported strong family history of tremors and how he had been teased in childhood for having hand tremors which cancelled out any in service association. Additionally, the examiner opined that the Veteran's essential tremors clearly and unmistakably existed prior to his service as the Veteran had reported childhood symptoms and family history of the symptoms. The examiner also opined that the Veteran's essential tremors, which clearly and unmistakably existed prior to service, were less likely as not aggravated by service as there was no evidence to support increased manifestation beyond that of the condition's natural progression. In support of the opinion, the examiner noted that the Veteran's assertions of childhood symptomatology and family history of symptoms would not have come out of nowhere, therefore proving the existence of the condition prior to service. The examiner also noted having reviewed the Veteran's private physician opinion relating his tremors to service and the articles submitted by the Veteran in favor of his claim. The examiner noted that it was agreed that there can be a lot of factors contributing to hand tremors but that regardless of the references, the Veteran's childhood symptoms negated any in-service association and that while there is existing medical literature supporting influence to the Veteran's hand tremors a definitive positive opinion could not be given on direct, secondary or aggravation. A March 2021 VA examiner stated that the Veteran has been diagnosed with a neurological disorder: essential tremor. The examiner asserted that per the Veteran's subjective history the onset of his tremors or hand shaking on day of exam incurred in or around 1991-1992. However, in careful review of the Veteran's medical record; he disclosed a conflicting medical history to his Neurologist in 2011. Per the neurology note by Dr. P, the onset of the condition was childhood. Furthermore, he endorsed he has a positive family history of shaking or tremors. The Veteran provided a similar history to Dr. D. on his C&P exam dated 02/18/2020. This history is significant in his current diagnosis as, per the neurology note of Dr. P, he concluded an impression and decision making for formulate the diagnosis based upon the documented statement of "[t]his patient present with a longstanding history of shaking of the upper extremities with neurological examination findings of a bilateral upper extremity postreaction tremor in the absence of bradykinesia or rigidity. This history and examination is most consistent with familial essential tremor." The examiner then opined that there is no evidence of complaints of tremors or hand shaking during active military service, therefore, it is less likely than not his essential tremors incurred in or were the result of active military service. In addition, there is no clear and unmistakable evidence the essential tremors were pre-existing to his active military service times as there is no evidence of the condition on his enlistment exam. Furthermore, there is no clear evidence to ascertain the essential tremors were aggravated by his claimed exposure to: secondhand smoke, organophosphates, exposure to fumes from fresh epoxy pain, new adhesive, hydrocarbons, lubricating oils, cooking vapors and carbon dioxide as there is no evidence of complaints of tremors during his active military service time or on his separation exam. Because the condition is not deemed pre-existing and aggravation nexus is not plausible. Finally, the examiner stated that the Veteran's essential tremors have been medically evaluated by a neurology specialist Dr. P. and determined to be familial in origin. The tremors are less likely than not related to the claim of environmental exposures. In January 2022, another VA medical opinion was provided. The examiner found that the Veteran's STRs showed insufficient evidence to support direct service connection. There was no mention of childhood tremors in the STRs based on negative enlistment and separation examination. The first notation of childhood tremors was during the neurological examination performed by in May 2011 and was reported again by other physicians. He denied any tremor in childhood. The family history is also negative for tremors. Regarding secondary service connection, the examiner also found that the Veteran's current diagnosis of essential tremors of both hands is not a congenital defect or a congenital disease. Essential tremor is the most common movement disorder. It is characterized by involuntary and rhythmic shaking (tremor), especially in the hands, without any other signs or symptoms. It is distinguished from tremor that results from other disorders or known causes, such as tremors seen with Parkinson disease or head trauma. Most cases of essential tremor are hereditary. The causes of essential tremor are unknown. Researchers are studying several areas on particular chromosomes that may be linked to essential tremor, but no specific genetic associations have been confirmed. Several genes, as well as environmental factors, are likely involved in an individual's risk of developing this complex condition. Furthermore, there is no preexisting tremor in childhood. Tremor was strongly denied before he joined the service. Therefore, there is no aggravation. Analysis Following a review of the record and the applicable legal criteria, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for essential tremors. As a preliminary matter, there is some evidence of record that supports a preexisting condition. However, this evidence is insufficient to rebut the presumption of soundness. As noted above, a veteran is presumed to be in sound condition upon entry into service, except for defects, infirmities, or disorders that are noted when examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but it will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Although the presumption of soundness is rebuttable, the burden is on VA to do so through clear and unmistakable evidence both that the disability existed prior to service, and that such disability was not aggravated by service. 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (2004); VAOPGCPREC 3-2003. Although VA examiners have opined that the Veteran suffered from a preexisting condition upon his entry into service, STRs do not show that his tremors were noted in his entrance examination. In addition, during Board testimony, the Veteran reported that any childhood "tremors" occurred as a kind of over-excitement shaking, and that as soon as he was no longer excited, the shaking stopped. Furthermore, in January 2022, a VA examiner following a review of the record in its entirety, to include prior medical opinions indicating a preexisting condition, found that the Veteran did not have a preexisting condition. Therefore, the high bar of clear and unmistakable evidence that the Veteran's disability preexisted service has not been met. Accordingly, the Veteran is presumed to have been sound when he entered into service. See 38U.S.C. §1111; 38C.F.R. §3.304(b). As the presumption of soundness has not been rebutted and general service connection requirements apply, service connection will be granted if the evidence shows that the Veteran's essential tremors began during or is otherwise related to service. Here, the Veteran is currently diagnosed with essential tremors. See January 2022 VA Examination. As such, the first element of service connection has been met. Regarding the second element of service connection, STRs are silent as to complaints, treatment, or a diagnosis during service. However, the absence of documented treatment in service is not fatal to a service connection claim. Service connection may still be granted for chronic conditions that have manifested continuous symptomology since separation of service. Thus, the salient question is whether the Veteran's disability is related to service. Here, there are two relevant medical opinions of record, the January 2022 VA opinion, and the October 2016 private opinion. The Board acknowledges that there are multiple additional VA opinions of record, however, as noted in prior Board decisions, these opinions are inadequate for adjudicative purposes. As such, they will not be addressed further in this decision. The Board next finds that the January 2022 VA negative nexus opinion is inadequate and of little, if any, probative value. Specifically, regarding direct service connection, the VA examiner failed to address the Veteran's MOS and lay statements regarding symptomology. In addition, the VA examiner based his opinion entirely on a lack of inservice documentation. However, the absence of contemporaneous treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such the opinion is inadequate for adjudicative purposes and a remand is warranted. Contrastingly, the October 2016 private positive nexus opinion is supported by the medical record, the Veteran's military personnel record, and the Veteran's lay statements. Accordingly, the opinion is afforded some probative value. Based on the foregoing, the evidence regarding whether the Veteran's disability is related to service is, at the least, in equipoise. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's essential tremors are related to service and the third element of service connection has been met. Accordingly, service connection for essential tremors is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.