Citation Nr: 21006038 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-12 851 DATE: February 3, 2021 REMANDED Entitlement to service connection for a sleep condition, to include obstructive sleep apnea, is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of removal of gallbladder is remanded. REASONS FOR REMAND The Veteran served on active duty in the 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). In August 2018, the Veteran testified at a hearing before the undersigned; a transcript of that hearing is of record. In March 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development.   1. Entitlement to service connection for a sleep condition, to include obstructive sleep apnea, is remanded. The Board’s March 2019 remand directed a VA medical opinion to address the etiology of the Veteran’s obstructive sleep apnea. The remand directed the examiner to address (1) the December 1991 service treatment record reflecting sleep trouble since serving in Saudi Arabia; (2) the Veteran’s complaint of difficulty sleeping and difficulty staying awake in the March 2003 VA treatment record; (3) 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; (4) the Veteran’s August 2018 testimony regarding his symptoms during service and their continuity since service. The Veteran underwent a VA examination for sleep apnea in October 2019, and a medical opinion concluded that the condition was less likely than not caused by the Veteran’s military service. The rationale was that there was no objective evidence of the Veteran being diagnosed or treated for sleep apnea during active duty. However, the medical opinion did not address the four items listed in the remand order for which consideration had been requested and it is unclear from the opinion whether these pieces of evidence were considered. A remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As the October 2019 opinion did not substantially comply with the March 2019 Board remand directives, another remand is necessary. 2. Entitlement to a disability rating in excess of 10 percent for residuals of removal of gallbladder is remanded. The Board finds remand is necessary for an addendum opinion regarding the Veteran’s residuals of removal of gallbladder. At the August 2018 Board hearing, the Veteran stated that he had been experiencing symptoms such as nausea, vomiting, difficulty urinating, recurrent abdominal pain, and bowel incontinence that he believed were associated with the residuals of the removal of his gallbladder. Pursuant to the Board’s March 2019 remand, the Veteran appeared for a VA examination in October 2019. At that time, the Veteran described having pain during flare-ups that was severe and that he had attacks of pain approximately 5 times a day since 1993. He stated that the pain is not related to what he eats, and that the pain is a 10/10 stabbing pain lasting roughly 20 to 30 minutes. The examiner concluded that the Veteran had mild symptoms. However, it is unclear from the examination report whether the symptoms described by the Veteran at the August 2018 Board hearing were considered in reaching this conclusion as they were not mentioned in the examination report. Further, it is unclear whether these symptoms are manifestations of the Veteran’s service-connected residuals of gallbladder removal or related to a nonservice-connected condition. Without further medical guidance on this question, the Board is unable to adequately evaluate the Veteran’s residuals of gallbladder removal. Therefore, the Board finds that remand is necessary in order to obtain an opinion regarding whether these symptoms are manifestations of the Veteran’s service-connected disability. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from May 2019 to the present. 2. Request an addendum opinion from the clinician who completed the October 2019 sleep apnea examination. If the October 2019 VA examiner is unavailable, then another appropriate clinician should be requested to provide the opinion. An examination of the Veteran (including via telehealth interview) should only be scheduled if the examiner determines such is needed in order to respond to the questions asked. The claims file should be made available to the clinician. The examiner must opine whether obstructive sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including his in-service reports of difficulty sleeping as noted in a December 1991 service treatment record and a March 2003 VA treatment record. In providing an opinion, the clinician should also address: (a.) 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; (b.) The Veteran’s August 2018 testimony regarding his symptoms during service and their continuity since service. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Request an addendum opinion from the examiner who completed the October 2019 gallbladder examination or another qualified clinician if that examiner is unavailable. An examination of the Veteran (including via telehealth) should only be scheduled if one is deemed necessary by the clinician providing the opinion. The claims file should be made available to the clinician. The reviewing clinician is asked to address the Veteran’s symptoms described at the August 2018 hearing of nausea, vomiting, difficulty urinating, and bowel incontinence and opine as to whether each of these symptoms is at least as likely as not (a 50 percent or greater probability) a manifestation of the Veteran’s residuals of gallbladder removal and post-cholecystectomy syndrome. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.