ESSENTIAL TREMOR

J.N. MOATS · 2022 · Case ID: 22055544

DENIED

Summary

The Veteran, a Veteran who served from January 1972 to January 1993, including service in the Republic of Vietnam, appeals the denial of service connection for essential tremors, claiming they are due to herbicide exposure. The Board reviewed extensive evidence, including service treatment records, private medical records, VA examinations, and a peer-reviewed study. Service treatment records showed no relevant complaints or diagnoses during service, and the retirement examination was normal. Private records indicated an onset of tremors around 2005-2006, diagnosed as essential tremor, with worsening symptoms reported over time. The Veteran also received Social Security disability benefits for tremors. The Board found multiple VA examinations inadequate due to procedural errors or outdated citations. A February 2021 VA examination diagnosed essential tremor but rendered a negative etiological opinion, citing no in-service medical notes and a lengthy gap between exposure and symptom onset. This opinion also noted the Institute of Medicine found insufficient evidence linking herbicides to essential tremors. The Board found the Veteran's assertion of a 1990 onset inconsistent with other evidence, deeming it not credible. The Board also noted the significant time gap between service and symptom onset, and the lack of presumptive conditions or direct causation. A May 2022 VA examination confirmed essential tremor but ruled out Parkinson's disease or Parkinsonism, thus precluding the application of the 2021 NDAA presumption for those conditions. The Board assigned significant probative weight to the May 2022 opinion, concluding the tremors are not due to herbicide exposure but likely alcoholism, which preceded service and continues. Service connection for essential tremors was denied.

Rationale

Service treatment records negative for tremors.; Private records show onset around 2005-2006, diagnosed as essential tremor.; VA examinations rendered negative etiological opinions.; Board found Veteran's 1990 onset assertion inconsistent and not credible.; No presumptive condition for tremors related to herbicide exposure.; No competent medical opinion linking tremors to herbicide exposure.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-24 458

Full Decision Text

Citation Nr: 22055544
Decision Date: 09/29/22 Archive Date: 09/29/22

DOCKET NO. 17-24 458
DATE: September 29, 2022

ORDER

Service connection for essential tremors (tremors disorder), to include as due to herbicide exposure, is denied.

FINDING OF FACT

Tremors did not manifest in service, did not manifest within one year of discharge from service, and are not otherwise attributable to service, to include exposure to herbicides.

CONCLUSION OF LAW

Tremors were not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101,1110, 1112. 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active-duty service from January 1972 to January 1993, to include service within the Republic of Vietnam.

This matter has had a long and complex procedural history, as the Board discussed extensively in its April 2022 remand.

As discussed below, there has been substantial compliance with the April 2022 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998.

The Board has reviewed the evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record; however, the Board does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence about what this evidence shows, or fails to show, about the issues on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

SERVICE CONNECTION

The Veteran asserts that his essential tremors (tremors disorder) are caused by his exposure to herbicides during his service in the Republic of Vietnam.

For the reasons articulated below, the Board finds that service connection is not warranted for the above-captioned claim. Even when contemplated under the evidentiary standards laid out in Lynch v. McDonough, 21 F. 4th 776, 781-82 (Fed. Cir. 2021), the evidence is not at least in relative equipoise as to whether this disability was incurred in, aggravated by, or otherwise attributable to, active-duty service. (holding that only when the evidence persuasively favors one side, or another is the benefit-of-the-doubt doctrine not for application). See id.

In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era beginning in January 1962 and ending in May 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309.

Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1);
, naval, or air service, served in the Republic of Vietnam during the Vietnam era beginning in January 1962 and ending in May 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309.

Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii).

Pertinent to this case, the 2021 National Defense Authorization Act (NDAA) extended the Agent Orange presumption to Parkinsonism in January 2021.

The Veteran's DD Form 214 shows that the Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal. The Regional Office verified the Veteran's Naval service to include "boots on the ground" in the Republic of Vietnam and conceded exposure to herbicide agents within a January 2014 rating decision. Thus, the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam.

Tremors are not among the diseases listed in 38 U.S.C. § 1116 or C.F.R. § 3.309(e). Consequently, the regulations and statutes pertaining to presumptive service connection based on exposure to herbicides may not be applicable to the claim, should the weight of competent and probative evidence fail to disclose that the Veteran's tremors are not Parkinsonism. Should such be the case, this does not preclude the Veteran from establishing service connection for tremors with proof of direct causation, to include as due to his exposure to herbicides. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, 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 the weight of evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107.

Evidence and Analysis

Service treatment records do not contain complaints, treatments, or diagnoses for tremors or other relevant neurological problems. The December 1992 retirement examination shows a clinically normal evaluation of the extremities and neurologic systems, and he denied any history of relevant symptoms on the December 1992 report of medical history.

Private neurology treatment records obtained by the Social Security Administration (SSA) from June 2006 shows complaints of a tremor when the Veteran tried to write and a diagnosis of "intentional tremor, probably familial." A treatment note from August 2006 shows the Veteran reported that his tremors bothered him usually when he had caffeine, which would affect his right hand by shaking, but would not affect his functioning otherwise. In June 2009 and August 2009, the Veteran reported increasing tremors in his hands, which caused problems with writing, which get worse when he has caffeine. Intentional tremor was diagnosed.

VA treatment records from March 2016 show the Veteran complained of worsening tremors and indicated he had been seen for 10 years by a private neurologist for this issue. Essential tremors were diagnosed. Private neurology records dated February 2017 show the Veteran reported an onset of tremors in his hands and head at age 50 and more recently in his legs. The Veteran was 62 at the time of the appointment. He was assessed with essential tremor. A May 2017 psychiatry treatment note shows the Veteran reported his tremor was getting worse and that it was spreading to other extremities and his neck, and the treating psychiatrist noted the Veteran's neck shaking.

In a November 2017 brief, the Veteran's counsel indicates that the Veteran had experienced extreme tremors in his hands and arms between 2004 and 2005, which affected his ability to write and grasp things, and was granted SSA benefits for his diagnosed tremors. The Veteran's counsel also cited a peer-reviewed study within the Movement Disorders medical journal, which shows increased rates of essential tremors in individuals exposed to dioxins.

Other private neurology records continue to show a diagnosis of benign familial essential tremor being treated with top
2017 psychiatry treatment note shows the Veteran reported his tremor was getting worse and that it was spreading to other extremities and his neck, and the treating psychiatrist noted the Veteran's neck shaking.

Other private neurology records continue to show a diagnosis of benign familial essential tremor being treated with topiramate. See, Cf., July 2018, January 2019 Neurology Notes.

The Veteran reported for VA examination in December 2017. The clinician reported onset at age 50 (approximately 2005). The Veteran endorsed tremors of the hands, legs, and head. Upon an October 2020 examination, a clinician diagnosed essential tremor, noting essentially the same onset date and associated symptoms. Both the December 2017 and the October 2020 clinicians rendered negative etiological opinions.

Regarding the December 2017 opinion, the parties to the December 2019 Joint Motion for Partial Remand opined that the clinician did not specifically discuss the medical basis for her rationale and, while the clinician indicated that current peer reviewed medical literature formed the basis of the opinion, did not cite or discuss any such literature or medical principles in the provided rationale. The Board remanded the claim to obtain a new opinion in May 2020. Specifically, the Board instructed that, in determining whether a tremor disorder was related to herbicide exposure, the clinician was "not to rely solely on whether the disease is one for which a "presumption" is established and, instead, state whether it is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases."

Regarding the October 2020 opinion, the Board determined the opinion was not fully adequate in the December 2020 remand. First, the Board found the examiner had failed to comply with the December 2019 Joint Motion, which directed the clinician to explain why tremors, if associated with Agent Orange, could not present more than 10 years after exposure to Agent Orange. Second, the Board found that the clinician had relied solely on whether the tremors were a disease for which a presumption is established when she cited an Institutes of Medicine update in support of the negative opinion, which was in direct contradiction of the previous May 2020 remand instructions. The October 2020 clinician cited the National Academy of Sciences' Institute of Medicine Veterans and Agent Orange: Update 2002 in rendering the opinion. Specifically, this clinician stated that according to the Institute of Medicine, there is currently insufficient evidence support an association between Agent Orange exposure and neuropsychiatric disorders. Citing the Institute of Medicine's Veterans and Agent Orange update did not contradict the Board's May 2020 remand instructions; whether essential tremors are a disease for which a presumption is established was irrelevant to the Institute's conclusion that there was insufficient evidence support an association between Agent Orange exposure and neuropsychiatric disorders. However, the clinician did not discuss why tremors could not present more than 10 years after exposure to herbicides as instructed by the Joint Motion. More pertinently, the Veterans and Agent Orange: Update 2002 was 18 years old at the time the opinion was rendered and, as such, was outdated regarding whether there was any association between neuropsychiatric disorders and herbicide exposure.

As both of these opinions were found to be inadequate, the Board remanded this matter again in December 2020 for another etiological opinion.

In February 2021, the Veteran reported for an examination. The clinician provided a diagnosis of essential tremor. The clinician reported that the Veteran endorsed that his disability first emerged and "hand shaking" in December 1990. This clinician rendered a negative etiological opinion as to causation and Agent Orange exposure. As a rationale, the clinician opined that the medical records contained no clinical notes of tremors during service, and the earliest mention of essential tremors in treatment records dates from May 2016. Moreover, the clinician indicated that the Veteran reported at a January 2014 VA examination that he had consumed alcohol since age 17 years old and has continued to consume two drinks per day. To this point, in an August 2017 treatment record, a clinician noted that the Veteran was a recovering alcoholic. And, according to this clinician, current medical literature includes findings that
shaking" in December 1990. This clinician rendered a negative etiological opinion as to causation and Agent Orange exposure. As a rationale, the clinician opined that the medical records contained no clinical notes of tremors during service, and the earliest mention of essential tremors in treatment records dates from May 2016. Moreover, the clinician indicated that the Veteran reported at a January 2014 VA examination that he had consumed alcohol since age 17 years old and has continued to consume two drinks per day. To this point, in an August 2017 treatment record, a clinician noted that the Veteran was a recovering alcoholic. And, according to this clinician, current medical literature includes findings that "some alcoholics get 'the shakes' when they are going through withdrawal and this temporary symptom can become permanent in some cases... known as essential tremor, and most commonly affects the limbs, head or speech." Furthermore, the clinician indicated that the Institutes of Medicine currently find insufficient evidence to support an association between Agent Orange exposure (herbicides) and essential tremor disorder, regardless of the duration between exposure and manifestation of symptoms. The Veteran reported having tremors for 10 years in 2016 (starting in 2006); however, he was able to work as disc jockey, handling disc jockey table for 36 years, despite alcoholism since his teen years. Consequently, the Veteran's tremors are not due to Agent Orange exposure, but from his alcoholism which preceded active-duty service and continues to the present (date of the examination).

For a medical opinion (medical evidence) to warrant probative weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative weight of a medical opinion comes primarily from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. "It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion." Id.

The Board assigns probative weight to the February 2021 clinician's opinion. The clinician rendered the opinion after reviewing the claims file and relevant medical records and after interviewing the Veteran. The clinician also mentioned that the Institute of Medicine's studies showed insufficient evidence to support an association between Agent Orange exposure (herbicides) and essential tremor disorder, regardless of the length of time apart from exposure to symptoms.

The Board finds some inconsistencies in this clinician's opinion. The clinician determined that the earliest evidence disclosing that the Veteran had tremors is found in May 2016 VA treatment records, indicating that the clinician did not review SSA medical records showing complaints of tremors in 2006. Such does not render the opinion inadequate or wholly non-probative. The Veteran's first reports of tremors were still many years after he was exposed to herbicides and separated from active-duty service, and the 2018 Institute of Medicine Update was silent regarding any association between herbicides and essential tremors.

The Veteran's counsel cited to a medical article titled "Dystonia and tremor following exposure to 2,3,7,8-tetrachlorodibenzo-p-dioxin" that was published in the Movement Disorders journal in 1987. The article addresses 47 railroad workers who were exposed to polychlorinated phenols, including dioxin (TCDD), during 1979 while cleaning up a chemical spillage following damage to a tank car. The workers were followed medically for the subsequent 6 years, and 35 developed intentional tremors resembling benign essential tremor.

Here, the treatise evidence submitted by the Veteran does suggest a relationship between essential tremor and exposure to dioxin. Such evidence is relevant topically but does not provide a specific causal connection in the Veteran's case. Here, the study pertains to railroad workers who were exposed to polychlorinated phenols following a chemical spillage rather than individuals exposed to Agent Orange or another herbicide agent. Most importantly, there is no competent medical opinion which relates the findings of this study to the specific facts of the Veteran's medical history

In November 2021, the parties to the JMR (the last of record) concurred that the Board erred when it failed to evaluate the applicability of the NDAA, which extended the herbicide presumption to Parkinson's disease and Parkinsonism in January 2021. Hence, the Board remanded the matter in April 2022, as noted above, for an opinion consonant with the NDAA.

, the study pertains to railroad workers who were exposed to polychlorinated phenols following a chemical spillage rather than individuals exposed to Agent Orange or another herbicide agent. Most importantly, there is no competent medical opinion which relates the findings of this study to the specific facts of the Veteran's medical history

In May 2022, the Veteran reported for a VA Parkinson's disease examination. The clinician reviewed the claims file and considered the Veteran's lay accounts. This clinician (a physician) provided that the Veteran had not been diagnosed and did not meet the diagnostic criteria for either Parkinson's disease or Parkinsonism. This clinician did continue the diagnosis of essential tremors (essential tremor disorder). According to the clinician,

[T]his Veteran's diagnosed essential tremors disorder is not related to Parkinson's disease or Parkinsonism. The Veteran's symptoms are limited to tremors in both arms and legs, consistent with essential tremors disorder. [...] [The Veteran's symptoms] do not include bradykinesia, rigidity, and [the] postural instability seen in Parkinsonism. 'Parkinsonism is a term used to describe the collection of signs and symptoms found in Parkinson's disease (PD). These include slowness (bradykinesia), stiffness (rigidity), tremor and imbalance (postural instability), tremor, and imbalance (postural instability).' (citing www.parkinsons.org (last accessed on September 25, 2022)).

This clinician also evaluated the Veteran for any other central nervous system and neuromuscular disease and, upon assessment, indicated that the Veteran's essential tremors disorder is a movement disorder impacting the extremities.

The Board assigns significant probative weight to the May 2022 VA physician's opinion. This expert reviewed the entire claims file and considered the totality of the Veteran's lay accounts. Moreover, this expert made a clear differentiation between the Veteran's diagnosed essential tremors disorder and both Parkinson's disease and Parkinsonism, referencing a website which spells out the exacting symptoms of the latter two disease entities. Without the symptoms of slowness (bradykinesia), stiffness (rigidity), tremor and imbalance (postural instability), tremor, and imbalance (postural instability, a diagnosis of either Parkinson's disease or Parkinsonism cannot be renderedaccording to evaluative neurological standards.

Thus, based upon this competent medical opinion, the Board must conclude that the Veteran has neither Parkinson's disease nor Parkinsonism. As such, the 2021 NADA is not for application and service connection is not available on a presumptive basis for herbicide exposure diseases.

The Board has also considered the lay statements of record. In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006).

The Veteran and his counsel have asserted the Veteran's tremors are related to his in-service herbicide exposure. The Veteran is competent to report that he has a current diagnosis, as is documented in the record, and is competent to describe the nature and onset of his symptoms; however, the Board finds that neither the Veteran nor his counsel are competent to opine as to the etiology of the Veteran's disability. The issue of whether his tremors are etiologically related to exposure to herbicides is not within the competence of a layperson, and there is no indication that the Veteran was told by a qualified medical professional that his tremors are due
d 1331, 1337 (Fed. Cir. 2006).

The Board observes that the Veteran reported at the February 2021 VA examination that his tremor symptoms began in December 1990, which was during his active-duty service. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F. 3d 11331. Nevertheless, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). The Veteran's statement that his tremors began in 1990 is inconsistent with the remainder of the record, including his prior lay statements. Service treatment records contain neither symptoms nor diagnoses relating to tremors, and clinical evaluation of the neurologic system was normal. As noted above, the Veteran has otherwise reported that his tremors began when he was approximately 50 years old, and his counsel has reported an onset in approximately 2004 or 2005. Private medical records state that the Veteran's tremors began in 2005 or 2006. As such, the Veteran's recent statement that his tremors began in 1990 is not credible.

Moreover, the Board observes that the multi-year gap between the Veteran's exposure to herbicides and his separation from active-duty service, and the documented onset of his symptoms in 2004 or 2005, weighs against the Veteran's service connection claim. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).

Finally, certain chronic diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 ; 38 C.F.R. §§ 3.307, 3.309. Alternatively, such chronic diseases may also be linked to service based upon continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331, 1338-40 (Fed. Cir. 2013). Even assuming that the Veteran's tremors are an organic disease of the nervous system, tremors were not noted during service or within one year of separation. Nothing in the evidence of record even suggests that the Veteran had characteristic manifestations to identify a disease entity during that time frame. Rather, the more probative medical and lay evidence reflects an onset of tremors around 2004 at the earliestover a decade after the Veteran's separation from active-duty service.

Therefore, the weight of competent, credible, and probative evidence establishes that the Veteran's tremors did not manifest in active-duty service, within a year of separation from active-duty service, or are related to herbicide exposure. As such, the Veteran's service connection claim is denied and there is no doubt to resolve. 38 U.S.C. § 5107(b).

J.N. Moats

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. J. Komins, 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.

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