Citation Nr: 21012961 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-09 458 DATE: March 8, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for night tremors is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to September 1992, including service in Southwest Asia from September 1990 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2020 order by the United States Court of Appeals for Veterans Claims (CAVC) granting a Joint Motion for Remand (JMR), which set aside a December 2019 denial by the Board, and remanded the issue for a new opinion. 1. Entitlement to service connection for a headache disability is remanded. The Veteran contends that entitlement to service connection is warranted for a headache disability. The Veteran had an examination for her claimed headache disability in April 2016. The examiner opined that it was less likely than not that the Veteran’s claimed headache disability was incurred in or caused by her active duty service. The examiner stated that the Veteran was seen on two instances for headaches without residuals during active duty. The examiner further noted that there was no mention of headaches in medical board procedures or separation documentation. The examiner stated that the Veteran’s records are silent until 2000 after a gunshot wound head injury. The examiner further noted that documentation after the wound documents migraines that started after the injury and that since 2000, she has had treatments for recurring headaches. The Board finds the April 2016 examiner’s opinion to be inadequate. It appears that the examiner mischaracterized the in-service treatment. Accordingly, remand is appropriate to obtain an addendum medical opinion regarding the etiology of the Veteran’s claimed headache disability. 2. Entitlement to service connection for night tremors is remanded. The Veteran contends that entitlement to service connection is warranted for night tremors. The Veteran had an examination for her claimed night tremors disability in April 2016 in the form of a Gulf War general medical examination. The examiner indicated that a “mental health evaluation would be indicated”. Additionally, the examiner opined that the Veteran’s night tremors are most likely residuals of the gunshot wound to the right skull in 2000. The Board finds the April 2016 examiner’s opinion is inadequate. The April 2016 examiner’s opinion was conclusory and did not provide an adequate rationale to support the opinion that the Veteran’s night tremors are attributable to a non-service cause. Furthermore, the examiner noted that a mental health evaluation would be indicated, but it is not clear that a mental health evaluation was conducted. Accordingly, remand is appropriate to obtain an addendum medical opinion regarding the etiology of the Veteran’s claimed night tremors disability. 3. Entitlement to a TDIU is remanded. The Veteran is also seeking entitlement to a TDIU. The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the Veteran’s claims for entitlement to service connection for a headache disability and night tremors. As such, the Veteran’s TDIU claim must be deferred pending resolution of the claims for entitlement to service connection for a headache disability and for night tremors. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA examiner to determine the nature and etiology of the Veteran’s claimed headache disability. The examiner should review the claims folder, and then respond to the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s current headache condition is related to military service? The examiner must consider the relevant medical evidence of record, in particular the examiner must fully consider the Veteran’s treatment for headaches noted in her service treatment records that note that she had headaches for five days, for which she had taken Tylenol with good results for a few hours, but the headaches returned, and the consequent assessment of tension headaches. See VBMS, document labeled STR - Medical, receipt date 10/22/1992, page 21. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any current night tremors disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., a likelihood of 50 percent or more) that a night tremors disability is due to active service, to include environmental exposures during service in Southwest Asia? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner should note that the lack of a diagnosed night tremors disability in service cannot serve as the sole basis for a negative finding. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Following completion of the development requested, readjudicate the Veteran’s claims, including a claim for TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.