Citation Nr: 21004308
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 13-22 375
DATE: January 26, 2021

REMANDED

Entitlement to service connection for tremors is remanded.

REASONS FOR REMAND

The Veteran served in active duty in the United States Navy from January 1980 to April 1980.  This matter comes before the Board from an April 2012 rating decision.  The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in April 2017.  The transcript is in the record. The matter was previously remanded July 2019, and August 2020. 

1. Entitlement to service connection for tremors is remanded.

The Veteran contends that his diagnosed essential tremors are related to his military service, He states that his tremors began in service and have continued since service separation.  The issue was most recently remanded in September 2020.  Notably, the examiner was instructed to address the Veteran’s report that he had tremors in-service and has consistently had tremors since service and, in so doing, state whether there is any evidence to accept or reject the proposition that the Veteran experienced essential tremors in service or that he has experienced a recurrent tremor disorder since that time. The September 2020 examination report did not include such a discussion. 

As the remand instructions were not fully complied with a remand is appropriate.  See Stegall v. West, 11 Vet. App. 268 (1998).  The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  

The Board further notes that the VA examiners have relied on the absence of evidence as negative evidence without further explanation.  There is indeed no medical evidence in-service or after, until the 2011 diagnosis. However, the Veteran has testified that he has experienced tremors since his service.  The Board may not consider the absence of evidence as substantive negative evidence unless it is the type of information that would necessarily have been of record.  See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2001); see also Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000).  Should the examiners determine that tremors should be of record, this should be explained.  

The matters are REMANDED for the following action:

Obtain an addendum opinion from an appropriate VA examiner.  The claim file, including a copy of this remand, must be made available to the examiner for review.  The examiner must acknowledge receipt and review.  The examiner should respond to the following: 

Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s essential tremor disability had its onset in or is otherwise etiologically related to the Veteran’s service. 

The examiner must address the Veteran’s report that he had tremors in-service and has consistently had tremors since service.  Notably, in so doing, the examiner should state whether there is any evidence to accept or reject the proposition that the Veteran experienced essential tremors in service or that he has experienced a recurrent tremor disorder since that time. 

Rationale for all opinions should be provided.  If the examiner cannot provide a requested opinion without resorting to speculation, such should be clearly stated along with an explanation as to why a more definitive opinion could not be provided. 

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Rekowski

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.