Citation Nr: 21062416 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-36 189A DATE: October 7, 2021 ORDER Entitlement to an initial compensable disability rating for residuals of a cholecystectomy is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a foot disability, to include plantar fasciitis, is remanded. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's cholecystectomy residuals have been asymptomatic; the competent and credible evidence of record does not support a finding that the Veteran has mild residuals. CONCLUSION OF LAW The criteria for a compensable disability rating for cholecystectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7318. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from May 1990 to October 1990 and March 2013. The Veteran also had National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for plantar fasciitis has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). These matters were previously before the Board in March 2019, when they were remanded for additional evidentiary development. In accordance with the remand directives, VA examinations were completed, and the matter has since returned to the Board for adjudication. 1. Entitlement to an initial compensable disability rating for residuals of a cholecystectomy The Veteran is currently assigned a noncompensable rating for cholecystectomy. She contends an initial compensable rating is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. § §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's residuals of cholecystectomy have been evaluated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7318. Under DC 7318, a noncompensable rating is warranted for non-symptomatic gallbladder removal. A 10 percent rating is warranted for gallbladder removal with mild symptoms. A 30 percent rating is warranted for gallbladder removal with severe symptoms. Words such as "moderate" and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4. By way of history, the Veteran was granted entitlement to service connection for cholecystectomy residuals in a July 2016 rating decision, rated as noncompensable effective July 2015. The Veteran was afforded a VA examination in May 2016. The VA examiner noted a diagnosis of cholecystectomy in 1990. The Veteran reported worsening symptoms and use of stool softeners for her condition. The VA examiner reported that the Veteran's cholecystectomy residuals are asymptomatic. In accordance with the March 2019 Board remand, the Veteran was afforded a VA examination in December 2019. The VA examiner noted a diagnosis of cholecystectomy (removal of gall bladder). The Veteran reported a worsening of symptoms including bloating and constipation. The Veteran further reported being diagnosed with irritable bowel syndrome (IBS) in 2007 to 2010. The VA examiner noted that the Veteran's cholecystectomy does not require continuous medication and her post-operative residuals are asymptomatic. The VA examiner determined that the Veteran's reported symptoms of diarrhea, constipation, abdominal distension, and nausea are symptoms of her non-service-connected IBS. In consideration of the evidence of record, the Board finds that the weight of the evidence preponderates against entitlement to a compensable rating for cholecystectomy. The VA examination reports of record indicate that the Veteran's cholecystectomy manifests as asymptomatic. Specifically, the December 2019 VA examiner reported that the Veteran's reported symptoms of diarrhea, constipation, abdominal distension, and nausea are symptoms of her non-service-connected IBS. Thus, the preponderance of the evidence demonstrates that the Veteran has not been shown to have mild symptoms of gallbladder removal during the period on appeal. Without such evidence, a compensable evaluation cannot be granted. Accordingly, the Board finds that the claim of entitlement to a compensable disability rating for cholecystectomy with constipation must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); see also Ortiz, supra. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. Although the Board regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim, so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, 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, 271 (1998). The Veteran asserts entitlement to service connection for obstructive sleep apnea (OSA). Specifically, the Veteran contends that she developed OSA during service, caused by shift work and job-related stress. See February 2017 Statement in Support of Claim. A review of the Veteran's service treatment records (STRs) shows multiple complaints of upper airway trouble. See June 1993, January 2013, and February 2013 STRs. In accordance with the March 2019, the Veteran was afforded a VA examination in December 2019. The VA examiner noted a diagnosis of obstructive sleep apnea. The Veteran reported a symptom onset in 2007 with snoring, fatigue, and sleep disturbances, continuing to the present day. The Veteran's OSA requires use of a continuous positive airway pressure (CPAP) machine. The VA examiner noted a 2015 sleep study formally diagnosing the Veteran with OSA. Following the examination and review of the Veteran's records, the VA examiner opined that the Veteran's OSA is less likely than not incurred in or caused by service. In support of this opinion, the VA examiner reasoned that the medical evidence of record does not show an event, disease, or injury in service associated with the development of OSA. The Veteran's STRs do not contain complaints, treatment, or diagnosis of OSA. The VA examiner noted OSA is an upper airway obstruction when -supine and working on shifts of being on-call is not associated with the development of OSA. Furthermore, the Veteran has a diagnosis of bronchospastic airway disease, a known cause of OSA. However, in the March 2021 remand, the Board directed the VA examiner to address respiratory or sinus symptoms that occurred while the Veteran was in service. There is nothing in the December 2019 opinion addressing the Veteran's respiratory complaints documented in her STRs. The Board finds the December 2019 opinion inadequate because it did not comply with the Board remand directive to address the Veteran's respiratory or sinus symptoms in service. Stegall v. West, 11 Vet. App. 268 (1998). Thus, remand is warranted for an addendum opinion. 2. Entitlement to service connection for a foot disability, to include plantar fasciitis is remanded. The Veteran asserts entitlement to service connection for a bilateral foot disability, including plantar fasciitis and pes planus. Specifically, the Veteran contends she developed her bilateral foot disabilities by wearing military style boots, first noticing pain in 2007. See February 2017 Statement in Support of Claim; see also March 2019 VA Examination Report. The Veteran further asserts that she received treatment by an orthopedic doctor for aching and swelling. Id. In this case, the Veteran has active duty service from with the United States Air Force from May 1990 to October 1990 and March 2013. The Veteran was diagnosed with bilateral plantar fasciitis in August 2015. In accordance with the March 2019 Board remand, the Veteran was afforded a VA examination in December 2019. The VA examiner noted diagnoses of pes planus and plantar fasciitis. The Veteran reported first noticing bilateral foot pain in 2007 while in service following jumping out of big trucks. The Veteran further reported being treated by the same podiatrist since 1989, specifically treating her in 2007 with custom inserts and bilateral foot injections. The Veteran endorsed flare-ups of bilateral foot pain, creating difficulty with standing and walking. Following a physical examination and review of the Veteran's records, the VA examiner opined that the Veteran's bilateral pes planus with bilateral plantar fasciitis less likely than not had its clinical onset during active service or is related to any in-service disease, event, or injury in 1990 or 2013. In support of this opinion, the VA examiner reasoned that medical evidence from May 1990 to October 1990 and in March 2013 does not show an event, disease, or injury nor any foot complaints, treatment, or diagnosis as described by the Veteran that support the development of bilateral plantar fasciitis. In February 2020, the Veteran submitted a September 2015 private treatment record. The Veteran reported experiencing pain in her heels off and on for 25 years worsening over the past couple years. The private orthopedist reported plantar fasciitis of the heel region, long-term in nature, with acute manifestations over the last six months to year. Because the September 2015 private treatment record, noting long-term plantar fasciitis, was not available to the December 2019 VA examiner, the Board finds that remand is warranted for an addendum opinion to address the new evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's obstructive sleep apnea. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea had its clinical onset during active service or is related to any in-service disease, event, or injury, specifically including respiratory or sinus diseases that occurred while the Veteran was in service. In providing this opinion, the examiner should consider and address the Veteran's lay statements of current functional symptomatology and accounts of any in-service sleep disturbances and respiratory diseases and symptomatology. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral foot disability. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified foot disability had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider and address the Veteran's lay statements of current functional symptomatology and the onset thereof, specifically the Veteran's complaints of flat feet while in service. The VA examiner must address the September 2015 private treatment record noting long-term plantar fasciitis with acute manifestations. (Continued on the next page) The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. If any benefit for which there is a perfected appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.