Citation Nr: 21067178 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-12 851 DATE: November 3, 2021 REMANDED Entitlement to service connection for a sleep condition, to include obstructive sleep apnea, and to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 10 percent for residuals of removal of gallbladder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from July 1980 to July 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in August 2018. A transcript of the hearing is of record. Subsequently, the Board remanded the claims in March 2019 and February 2021 for further development. 1. Entitlement to service connection for a sleep condition, to include as secondary to a service-connected disability, is remanded. Initially, the Board notes that in June 2021 a VA reviewing clinician opined that it is less likely than not that the Veteran's sleep condition is proximately due to or the result of his service-connected low back condition and/or service-connected neck condition. Per VA regulations, service connection may be granted for a disability that is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310. Additionally, any increase in severity of a nonservice-connected disease (i.e., aggravation) that is proximately due to or the result of a service-connected disease will be service connected. The June 2021 opinions do not address whether the Veteran's service-connected low back condition and/or service-connected neck condition have aggravated the Veteran's sleep condition. Therefore, as the June 2021 VA opinions are inadequate to evaluate the Veteran's claim for service connection for sleep condition, an additional VA opinion is necessary to adequately evaluate the etiology of the Veteran's sleep condition. Furthermore, the March 2021 VA opinion regarding direct service connection does not reflect consideration of the Veteran's statements as to the continuity of his sleep condition symptoms since service, as was requested in the February 2021 remand order. Moreover, the June 2021 VA opinion and August 2021 addendum opinion regarding direct service connection do not address the March 2011 VA examiner's statement that "I would suspect that it was more likely than not that his prior diagnosis of sleep disturbance was, in fact, obstructive sleep apnea," as was requested in the February 2021 remand order. Thus, the claim must be remanded for additional development as there has not been substantial compliance with the mandates of the February 2021 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Additionally, in a March 2021 statement, the Veteran alleged that in-service treatment providers indicated that he may have felt tired due to an allergic reaction to Anthrax shots. A medical opinion has not been obtained on this theory of entitlement and should be addressed on remand. Also, in an April 2021 written statement, the Veteran requested the qualifications of the March 2021 VA reviewing clinician. VA's obligations to provide information regarding the curriculum vitae and other qualifications of an examiner in connection with a disability compensation claim arise under VA's duty to assist. See 38 U.S.C. § 5103A(a); Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (en banc). Thus, upon remand, the appropriate curriculum vitae or other information about the qualifications of the March 2021 reviewing clinician should be provided to the Veteran and his representative. 2. Entitlement to a rating in excess of 10 percent for residuals of removal of gallbladder is remanded. Initially, the Board finds that the claim must be remanded for additional development as there has not been substantial compliance with the mandates of the February 2021 remand order. See Stegall, 11 Vet. App. at 271. In February 2021, the Board remanded the claim to obtain an addendum opinion where the Board specifically requested the reviewing clinician to opine as to whether each of the Veteran's symptoms of nausea, vomiting, difficulty urinating, and bowel incontinence is at least as likely as not a manifestation of the Veteran's residuals of gallbladder removal and post-cholecystectomy syndrome. In March 2021, the reviewing clinician provided opinions regarding the Veteran's symptoms of difficulty urinating and bowel incontinence; however, the reviewing clinician did not provide opinions for the symptoms of nausea and vomiting. Instead, the reviewing clinician simply stated that "[t]he [V]eteran's [complaints of] nausea and vomiting are not specific." As the March 2021 VA opinion does not substantially comply with the February 2021 remand order, the claim must be remanded for an additional VA opinion. See Stegall, 11 Vet. App. at 271. In addition, in an April 2021 written statement, the Veteran requested the qualifications of the March 2021 VA reviewing clinician. As is noted above, VA's obligations to provide information regarding the curriculum vitae and other qualifications of an examiner in connection with a disability compensation claim arise under VA's duty to assist. See 38 U.S.C. § 5103A(a); Francway, 940 F.3d at 1308. Thus, upon remand, the appropriate curriculum vitae or other information about the qualifications of the March 2021 reviewing clinician should be provided to the Veteran and his representative. The matters are REMANDED for the following actions: 1. Solicit the appropriate curriculum vitae or other information about the qualifications of the March 2021 reviewing clinician who provided the opinions regarding sleep apnea and residuals of removal of the gall bladder and furnish this information to the Veteran and his representative, providing an opportunity to respond with evidence or argument. 2. Obtain any updated VA treatment records from August 2021 to the present. 3. Obtain a medical opinion from a qualified clinician for the Veteran's sleep condition claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related or attributable to his military service, including his in-service reports of difficulty sleeping as noted in a December 1991 service treatment record and a March 2003 VA treatment record, his service in Southwest Asia, and any vaccinations required for his service in Southwest Asia? In providing this opinion, the reviewing clinician should also address: i) The March 2011 VA examiner's statement that "I would suspect that it was more likely than not that his prior diagnosis of sleep disturbance was, in fact, obstructive sleep apnea," and; ii) The Veteran's August 2018 testimony regarding his symptoms during service and their continuity since service. In addressing these questions, the reviewing clinician is asked to consider the medical literature submitted by the Veteran on April 6, 2021. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected low back condition and/or neck condition? If the Veteran's sleep apnea has been aggravated by his service-connected low back condition or neck condition, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain a medical opinion from a qualified clinician for the Veteran's gallbladder claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's symptom of nausea is a manifestation of his residuals of gallbladder removal and post-cholecystotomy syndrome? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's symptom of vomiting is a manifestation of his residuals of gallbladder removal and post-cholecystotomy syndrome? In rendering these opinions, the reviewing clinician should consider the Veteran's description of his symptoms, including as provided in a written statement submitted April 6, 2021. The reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.