Citation Nr: 23050002 Decision Date: 09/09/23 Archive Date: 09/09/23 DOCKET NO. 15-31 315 DATE: September 9, 2023 ORDER Entitlement to service connection for essential tremor, claimed as Parkinson's disease, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran was not diagnosed with Parkinson's disease, and his essential tremor diagnosis does not qualify as Parkinson's Disease or as Parkinsonism. 2. The Veteran's essential tremor did not start during service, within a year from service, and is not etiologically related to his service, to include as due to exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for essential tremor disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1969 to November 1971, with service in Vietnam. Unfortunately, the Veteran passed away in April 2023. The Veteran's son has been substituted as the appellant. This matter came before the Board of Veteran's Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). This matter has a long procedural history. In a January 2019 Board decision, the Board denied the Veteran's claim due to a lack of diagnosis for Parkinson's disease. The Veteran appealed the January 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2019 Order of the Court granting a November 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the part of the January 2019 Board decision denying service connection for Parkinson's disease and remand the matter for compliance with the terms of the JMPR. The November 2019 JMPR indicated that the Board failed to fulfill its duty to assist obligation because during a June 2013 neurology outpatient consult the Veteran stated that that when he drove for the Department of Transportation (DOT), during a physical examination his doctor told him that he had Parkinson's disease, and efforts were not made to obtain the Veteran's DOT physical examination records. The Board remanded the matter in May 2020 to identify and obtain the Veteran's DOT physical examination records. The Board again remanded the Veteran's claim in August 2021 to identify and obtain the Veteran's DOT physical examination records and to obtain an addendum medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's essential tremor, to include if it qualifies as "Parkinsonism" and if it was caused by the Veteran's herbicide exposure. The RO obtained addendum medical opinions on these matters in January 2022 and February 2022. The Board again remanded the matter in July 2022 to obtain the Veteran's DOT records, and the Board dismissed the matter in April 2023 due to the Veteran's death. For the reasons explained below, the Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO attempted to obtain the Veteran's DOT records in September 2020, January 2022, November 2022, December 12, 2022, December 20, 2022, February 2023, July 2023, and August 2023. No response from DOT has been received. VA has a duty to "make reasonable efforts to assist" veterans "in obtaining evidence necessary to substantiate" their claims. 38 U.S.C. § 5103A(a)(1). Despite the RO's inability to verify or obtain the Veteran's alleged DOT records, the Board concludes that the duty to assist has been satisfied. Here, the RO has made many attempts to verify and obtain the Veteran's alleged DOT records. The DOT has not even verified that these records exist. The Veteran and the appellant have had ample opportunity to submit these records and they have not done so. As such, the Board finds that a remand for the RO to again ask DOT for the Veteran's records does not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159(d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). Service Connection The Veteran seeks service connection for essential tremor, claimed as Parkinson's disease, to include as due to exposure herbicide agents. As the Veteran was in Vietnam during the Vietnam Era, herbicide exposure is presumed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including other organic diseases of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). If a Veteran served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to certain tactical herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active military service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, Parkinsonism, but they do not include essential tremor. See 38 U.S.C. § 1116(a)(2). Parkinsonism is defined as "a group of neurological disorders characterized by hypokinesia, tremor, and muscular rigidity." Dorland's Illustrated Medical Dictionary, 1383 (32nd ed. 2012). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicide agents with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). The Veteran's service treatment records (STRs) do not indicate any complaints, treatment, or diagnoses of essential tremor symptoms. The Veteran's January 2013 claim stated that he was seeking service connection for Parkinson's disease as due to herbicide exposure. April 2013 VA treatment notes indicate that the Veteran stated that four months ago his right arm and hand started to shake. He noted that he had intermittent numbness/tingling of the right hand and arm lasting from a few seconds to a few minutes. June 2013 VA treatment notes from a neurology consult indicate that after a neurological examination was conducted, the Veteran was diagnosed with essential tremor. The notes related that the Veteran stated that he previously drove for DOT, and two years ago his tremors were noted during a physical examination for work. He stated that the doctor told him he had Parkinson's disease. In the Veteran's February 2014 notice of disagreement (NOD), the Veteran indicated that he had not received a proper examination for his disability. He stated that he cannot hold his cup or write with his right hand, and he stated that based on his diagnosis of Parkinson's and the early symptoms he was showing, the RO should grant his claim. In the Veteran's August 2015 substantive appeal, he stated that there is a link between Parkinson's disease and essential tremor, and that he has additional Parkinson's disease symptoms aside from tremors. He also stated that no one in his family experienced his disability, and he noted that essential tremor is more hereditary than not. February 2020 VA treatment notes indicated that the Veteran followed up with a neurologist for treatment of his essential tremor. The neurologist reviewed a 2019 CT of the Veteran's head, conducted an examination, and stated that the Veteran had no Parkinsonian features. A January 2022 VA examination report noted that the Veteran was diagnosed with essential tremor. The examiner stated that the Veteran's tremor was noted with bilateral hands when moving into extension. The examiner stated that the Veteran's disability impacted his ability to work. The examiner noted that the Veteran's tremor started in 2011, and she stated that the Veteran was seen by a neurologist many times, and each time he was diagnosed with essential tremor, and the neurologist documented that there were no Parkinson's disease symptoms. She stated that there is a common misconception that all tremors are Parkinson's disease. She stated that while both Parkinson's disease and essential tremor cause hand tremors, they are two completely different diseases. The examiner cited a medical article to support her opinion. She stated that the tremor is not present at rest in essential tremor, while in Parkinson's disease, the tremor is present during rest and absent during activity. She stated that upon physical examination, the Veteran has bilateral hand tremors with active movement. She stated that essential tremor is more common in people over the age of forty, and the cause is believed to be a gene mutation. She stated that the Veteran does not have Parkinson's disease, and she opined that based on her review of the records and physical examination, the Veteran's essential tremor is less likely than not due to his service or his herbicide exposure during service. A February 2022 VA addendum medical opinion stated that Parkinsonism is any condition that causes a combination of the movement abnormalities seen in Parkinson's disease, such as a tremor, slow movement, impaired speech, or muscle stiffness. It noted that essential tremor is a nervous system disorder that causes rhythmic shaking. The opinion stated that Parkinsonism does involve tremors, but they are not called essential tremor. The opinion noted that the Veteran's tremors occur with active movement, which is the opposite of a Parkinson's disease tremor, which occurs at rest. The opinion stated that Parkinsonism is a combination of movement abnormalities, and it related that the Veteran only has a tremor with active movement, which is not a movement abnormality seen in Parkinson's. The opinion concluded that Parkinsonism does not include essential tremor. A February 2023 Toxic Exposure Risk Activity (TERA) memo noted that the Veteran was exposed to herbicides during service, and therefore participated in a TERA. A March 2023 VA TERA examination indicated that the Veteran stated that his disability began between 2005 and 2010, and included constant shaking with activity. The examiner stated that it was less likely than not that the term Parkinsonism includes essential tremors, and she cited medical articles. She stated that Parkinsonism and Parkinson's Disease are often confused with essential tremors. The examiner noted that although the Veteran had begun with symptoms of having a unilateral tremor, tremors of Parkinsonism and Parkinson's disease occur at rest, and those of the Veteran are with intention/movement consistent with the diagnosis of essential tremors. She stated that the diagnoses of Parkinsonism and Parkinson's disease are associated with bradykinesia, loss of autonomic movements such as decreased blinking and having a flat affect, rigidity, and non-motor symptoms such as hyposmia and REM sleep behavior. She noted that essential tremors can become disabling. The examiner opined that Parkinsonism, therefore, does not include essential tremor, and she asserted that it is less likely as not that the Veteran's essential tremor started during service or were otherwise related to service, to include as due to the conceded herbicide exposure. The examiner opined that the Veteran's essential tremor was less likely than not caused by the indicated TERA, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs of the Veteran. The examiner stated that when the Veteran noted the tremor in his right arm, it was two years before his 2013 neurological where he was diagnosed with essential tremor. She stated that this was 40 years post military service, and there are no records of tremors occurring within military service or 1 year post service. The examiner stated that essential tremor is not known to be a disability related to toxic exposures in the era the Veteran served in. After reviewing the evidence of record, the Board finds that the Veteran's claim for essential tremor is not warranted. Regarding the matter of the Veteran's assertion that he was diagnosed with Parkinson's disease and that essential tremor can be classified as Parkinson's disease, there is no medical evidence of record indicating that the Veteran was diagnosed with Parkinson's disease or that his essential tremor can be classified as such. While the Veteran alleged that he was diagnosed with Parkinson's disease by a doctor during a physical examination while he worked at the DOT, February 2020 VA treatment records documenting a neurological examination indicated that a VA neurologist noted that the Veteran did not have any Parkinsonian features, and both the January 2022 VA examination report with the February 2022 addendum and the March 2023 VA examination report indicated that the Veteran did not have Parkinson's disease. The January 2022 VA examiner stated that there is a common misconception that all tremors are Parkinson's disease, and she noted that while both Parkinson's disease and essential tremor cause hand tremors, they are two completely different diseases. She explained that a tremor that is not present at rest is an essential tremor, while in Parkinson's disease, the tremor is present during rest and absent during activity. She stated that upon physical examination, the Veteran has bilateral hand tremors with active movement. The examiner opined that therefore, Veteran does not have Parkinson's disease. The March 2023 VA examiner noted that although the Veteran's disability had begun with symptoms of having a unilateral tremor, tremors from Parkinsonism and Parkinson's disease occur at rest, and those of the Veteran occur with intention/movement consistent with the diagnosis of essential tremor. She stated that the diagnoses of Parkinsonism and Parkinson's disease are associated with bradykinesia, loss of autonomic movements such as decreased blinking and having a flat affect, rigidity, and non-motor symptoms such as hyposmia and REM sleep behavior. She noted that essential tremor can become disabling, but there are no other signs indicating Parkinsonism/Parkinson's for the Veteran. The Board finds that together, the January 2022 VA examination report and the March 2023 VA examination report provide a fully-articulated conclusion adequately supported by medical rationale and citations to the Veteran's claims file and medical history regarding the questions of whether the Veteran has been diagnosed with Parkinson's disease and whether the Veteran's diagnosis of essential tremor qualifies as Parkinson's disease. While the Veteran is certainly competent to report tremor symptoms, he has not demonstrated that he has the requisite specialized knowledge or training to attribute those symptoms to his claimed Parkinson's disease, or to opine that his essential tremor diagnosis qualifies as Parkinson's disease. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence of a current diagnosis for Parkinson's disease. Accordingly, the Veteran's assertions that he had a diagnosis of Parkinson's disease and that essential tremor qualifies as Parkinson's disease have little probative value. Therefore, the Board finds that the Veteran was not diagnosed with Parkinson's disease during the relevant appeal period, and also finds that his essential tremor diagnosis does not qualify as Parkinson's disease. Regarding the matter of whether the Veteran's essential tremor can be classified as Parkinsonism, all of the medical evidence of record indicates that the Veteran's diagnosis of essential tremor does not qualify as Parkinsonism. The February 2022 VA addendum medical opinion states that Parkinsonism is any condition that causes a combination of the movement abnormalities seen in Parkinson's disease, such as a tremor, slow movement, impaired speech, or muscle stiffness. It noted that essential tremor is a nervous system disorder that causes rhythmic shaking. The opinion stated that Parkinsonism does involve tremors, but they are not called essential tremor. The opinion noted that the Veteran's tremors occur with active movement, which is the opposite of a Parkinson's tremor, which occurs at rest. The opinion stated that Parkinsonism is a combination of movement abnormalities, and it related that the veteran only has a tremor with active movement, which is not a movement abnormality seen in Parkinson's disease. it concluded that Parkinsonism does not include essential tremor. As stated previously, the March 2023 VA examiner noted that although the Veteran's disability had begun with symptoms of having a unilateral tremor, tremors due to Parkinsonism and Parkinson's disease occur at rest, and those of the Veteran occur intention/movement consistent with the diagnosis of essential tremor. She stated that the diagnoses of Parkinsonism and Parkinson's disease are associated with bradykinesia, loss of autonomic movements such as decreased blinking and having a flat affect, rigidity, and non-motor symptoms such as hyposmia and REM sleep behavior. She noted that essential tremor can become disabling. The Board finds that together, the January 2022 VA examination report and the March 2023 VA examination report provide a fully-articulated conclusion adequately supported by medical rationale and citations to the Veteran's claims file and medical history regarding the question of whether the Veteran's essential tremor diagnosis qualifies as Parkinsonism. Significantly, neither the Veteran nor the appellant has presented or identified any contrary medical opinion that supports the notion that an essential tremor diagnosis qualifies as Parkinsonism. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). While the Veteran is certainly competent to report tremor symptoms (as stated previously), he has not demonstrated that he has the requisite specialized knowledge or training to classify his diagnosed essential tremor diagnosis as Parkinsonism. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence that his essential tremor diagnosis qualifies as Parkinsonism. Accordingly, the Veteran's assertions that essential tremor diagnosis can be classified as Parkinsonism have little probative value. Therefore, the Board finds that the Veteran's essential tremor diagnosis does not qualify as Parkinsonism. The Board acknowledges that essential tremor is a chronic disease eligible for service connection on a presumptive basis under 38 C.F.R. § 3.309(a), under the category of "other organic disease of the nervous system." However, the Veteran's STRs do not indicate any complaints, treatment, or diagnosis of tremors, the first time the Veteran's disability is mentioned in the medical evidence of record is in April 2013 when the Veteran stated that his right arm and hand began to shake four months ago, and then next in the June 2013 VA treatment records when the Veteran was diagnosed with essential tremor and stated that the Veteran stated that his disability was noticed by a doctor in 2011. In the March 2023 VA examination report the Veteran stated that he first noticed the disability between 2005 and 2010. Therefore, the Veteran's essential tremor has neither been shown as a chronic disease in service and manifesting at a later date; having manifested to a compensable degree within one year following separation from service; or as having been continuous in symptomatology after discharge from service. Regarding the question of whether the Veteran's essential tremor disability is etiologically related to his service, to include as due to his herbicide exposure, all of the medical evidence of record indicates that the Veteran's essential tremor is not due to his service, to include herbicide exposure. The January 2022 VA examiner opined that based on her review of the records and physical examination, the Veteran's essential tremor is less likely than not due to his service or his herbicide exposure during service. She explained that essential tremor is more common in people over the age of 40, and the cause is believed to be a gene mutation. The March 2023 VA The examiner opined that the Veteran's essential tremor was less likely than not caused by the indicated TERA, after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all TERAs of the Veteran. The examiner stated that the Veteran first reported a tremor in his arm around 40 years post military service, and she related that there are no records of tremors occurring within military service or 1 year post service. The examiner noted that essential tremors are not known to be a condition related to toxic exposures in the era the Veteran served in. The Board finds that together, the January 2022 VA examination report and the March 2023 VA examination report provide a fully-articulated conclusion adequately supported by medical rationale and citations to the Veteran's claims file and medical history regarding the question of whether the Veteran's essential tremor diagnosis was caused by his service, to include herbicide exposure. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Significantly, neither the Veteran nor the appellant has presented or identified any contrary medical opinion that supports the notion that the Veteran's essential tremor disability is etiologically related to his service. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). While the Veteran is competent to report the onset and continuance of lay observable symptoms, he is not competent to opine as to the etiology of his tremor disability, as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Veteran's statements concerning a causal relationship between his essential tremor disability and his service, including agent orange exposure, are entitled to no probative weight. As such, the Board finds that the evidence of record persuasively weighs against service connection for essential tremor, claimed as Parkinson's disease. See 38 C.F.R. § 3.304; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.