Citation Nr: 21008030 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-27 417 As a DATE: February 11, 2021 REMANDED Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. Entitlement to service connection for a disability characterized by frequent urination is remanded. Entitlement to service connection for a gastrointestinal condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to March 1976. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision denied service connection for a left shoulder disability and remanded the remaining issues on appeal. The Veteran appealed the Board’s denial of service connection for the left shoulder to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted the a Joint Motion for Partial Remand ( JMPR ) of the Veteran and the Secretary of Veteran’s Affairs, vacating the November 2018 decision as it pertained to the issue of service connection for the left shoulder and remanding the appeal for readjudication in accordance with instructions set out in the JMPR. An April 2020 Board decision then remanded the issue, and it is still undergoing development with the Agency of Original Jurisdiction (AOJ). It will therefore be addressed in a separate decision at a later date. A November 2019 rating decision granted service connection for an acquired psychiatric disability. As this constituted a complete grant of the benefit sought on appeal, the issue is not before the Board. A July 2020 Board decision denied increased ratings for the bilateral knees and remanded the issues of service connection for a sleep disorder, a disability characterized by frequent urination and a gastrointestinal disorder for further development. 1. Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. The July 2020 Board decision requested a VA sleep disorders examination regarding the Veteran’s claimed sleep disability, specifically asking that a sleep study should be obtained to determine whether the Veteran had sleep apnea. The directives stated that if the Veteran refused a sleep study, this should be clearly documented. The directives also requested an opinion regarding whether the Veteran had a separate and distinct sleep disability or whether it was encompassed by the Veteran’s acquired psychiatric disability. Upon remand, instead of the requested sleep disorders examination and sleep study, the Veteran was provided with a September 2020 VA behavioral health opinion. Upon review, the Board notes that the examination request did not specify a sleep disorder examination, explicitly stated that the Veteran need not report for an examination, and only requested a medical opinion. In the September 2020 behavioral health opinion, the provider found that there was no evidence of insomnia or another sleep disorder in the record and that the symptoms reported in the September 2019 mental examination were accounted for by his major depressive disorder. The provider commented that she was a psychologist and therefore could not diagnose sleep apnea. As the July 2020 remand directives asked for a VA sleep disorders examination and that a sleep study be performed to determine whether the Veteran had sleep apnea, and the Veteran was instead provided with a psychiatric opinion by a provider who specifically stated that she was not qualified to diagnose sleep apnea, the Board finds that there was a failure to comply with the terms of the remand. In so finding, the Board particularly notes the statement in the examination request that the Veteran need not report for an examination, despite the clear request for a sleep study. Remand for a new examination to address the nature of the Veteran’s disability, including a sleep study, is therefore required. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a disability characterized by frequent urination is remanded. The July 2020 Board decision noted the Veteran’s reports of frequent urination and his contentions that medication taken for his spine caused frequent urination and found that the September 2019 VA urinary tract examination was inadequate. The July 2020 Board decision therefore requested a new VA examination to determine whether the Veteran had a voiding dysfunction. A VA examination was provided in August 2020, but instead of a new urinary tract examination the record shows that a kidney examination was completed. The examiner found that the Veteran did not have a current kidney disability. The examiner noted reports of urinary frequency and leakage and stated that there were no urological evaluations in the claim file. The examiner then concluded that there was no evidence of kidney disease and therefore no diagnosis rendered. The examiner did not specifically address whether the Veteran had a voiding dysfunction. Given that the July 2020 Board decision found a urinary tract examination found to be inadequate and asked for a new examination, it is unclear why a kidney examination was provided upon remand, particularly as the record is silent for any contention that the Veteran has a current kidney disability. The Board notes that the Veteran June 2011 claim for service connection characterized his disability as frequent urination secondary to his service-connected back disability, not as a kidney disability. A determination that he does not have a current kidney disability is not responsive to that contention. Thus, the August 2020 kidney examination does not provide the Board with the required information to assess whether he has a current voiding dysfunction characterized by frequent urination. The Board therefore finds that remand for a new VA urinary tract examination is required in order to ensure compliance with the prior remand directives and fully address the Veteran’s contentions. 3. Entitlement to service connection for a gastrointestinal condition is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. At the August 2020 VA gastrointestinal examination, the Veteran reported that he was scheduled for a colonoscopy in a few months. August 2020 VA treatment records indicate that the procedure was scheduled for November 2020. The Board’s review indicates that those records have not yet been associated with the claim file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The July 2020 Board remand asked for a new VA examination to determine whether the Veteran had an additional disability besides his service connected hemorrhoids and diverticulitis. The remand directives stated that if an additional disability was diagnosed, the examiner should address whether it was caused or aggravated by the service connected lumbar spine disability or medication taken for service connected disabilities. The directives specifically asked that the opinion address the Veteran’s assertions that his pain medications damaged his stomach. A VA intestinal examination was provided in August 2020. The provider diagnosed diverticulosis and constipation. The examiner provided an opinion that constipation was not due to service and that the claimed symptoms of abdominal pain, constipation and diarrhea were symptoms unrelated to the current diagnosed conditions. As a rationale, the examiner stated that constipation was totally unrelated to the lumbar spine disability as lumbar spine arthritis did not cause constipation. Regarding the effect of opiate pain medications, the examiner stated that they had a recognized a side effect of constipation. The examiner then stated, however, that the Veteran had stopped taking opiates and the bouts of abdominal pain and constipation continued. The Board notes that there is no indication that in reaching this conclusion the examiner considered the Veteran’s assertions that pain medication damaged his stomach, as requested in the July 2020 Board remand. The examiner then stated that the claim folder showed a history of chronic alcohol consumption, which harmed gut barrier function. Therefore, the examiner stated that there was no nexus. Finally, the examiner opined that symptoms of abdominal pain, constipation and diarrhea were not likely due to his hemorrhoids and diverticulitis as those disabilities were asymptomatic. The Veteran’s attorney submitted an October 2020 statement contending that the August 2020 gastrointestinal opinion was inadequate for review. The attorney noted that the opinion was unclear regarding the role of pain medications as it both found that medication did play a role with a common side effect of constipation and that it currently did not play a role as the Veteran was no longer on opiates. The attorney also contended that the August 2020 opinion was based on an inaccurate factual basis as the examiner cited alcohol consuption as a reason for the Veteran’s current disability when the Veteran had been sober for 10-11 years. Finally, the attorney noted that the opinion failed to address the side effects of the Veteran’s current pain medication, etodolac, which included nausea, diarrhea, constipation, indigestion and gas. The Board finds that a new examination is required upon remand. First, consistent with the Veteran’s attorney’s reports, August 2020 VA treatment records noted alcoholism in remission and January 2017 VA treatment records noted that the Veteran had been sober for 11 years. The August 2020 opinion, in characterizing the Veteran’s “history of chronic alcohol consumption” and its effect on the gut barrier, did not address this fact. This is particularly significant as the opinion relied on a 2012 colonoscopy diagnosis in assessing the Veteran’s disabilities, and the Board notes that this colonoscopy occurred during the period of the Veteran’s sobriety. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). In addition, the August 2020 examiner’s finding that the Veteran’s pain medication did have a side effect of constipation, even though it was later discontinued, raises the question of whether opiate medications contributed to the development of the Veteran’s constipation, even if they are no longer a factor. This question should be addressed upon remand, and the opinion should address the Veteran’s contentions regarding stomach damage. The opinion should also address not only the impact of the Veteran’s prior opiate medication but his current pain medication and its side effects. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the Present, including any records of his November 2020 colonoscopy. 2. Schedule the Veteran for a VA sleep disorders examination, to include a sleep study. If the Veteran is unwilling or unable to attend the sleep study, this must be clearly documented. to determine the nature and etiology of any current sleep disability, to include sleep apnea. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Does the Veteran have a current sleep disability, including sleep apnea, that is separate and distinct from his service-connected depressive disorder? The basis for any findings should be clearly stated. b) For any current sleep disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it was caused or aggravated by the Veteran’s service-connected depressive disorder. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for a VA urinary tract examination, along with any other examinations deemed appropriate by the examiner, to determine the etiology of any current disability characterized by frequent urination. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Does the Veteran have a current disability characterized by frequency urination, including a voiding dysfunction? b) For any current urinary frequency disability, including any voiding dysfunction, found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it was caused or aggravated by either the service-connected lumbar spine disability or medication taken for the Veteran’s disabilities, to include the medication for his depressive disorder. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current gastrointestinal disability, to include constipation. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current gastrointestinal disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include whether it was caused or aggravated by the pain medication for his service connected disabilities. The opinion should specifically address whether the Veteran’s use of pain medication likely contributed to the development of any gastrointestinal disability and should discuss the Veteran’s previous use of opiate pain medication, his contentions that his medication damaged his stomach, and his current pain medication and its side effects. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. (Continued on next page)   5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.