Citation Nr: 21023092 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-41 482A DATE: April 20, 2021 ORDER Service connection for status post cholecystectomy is granted. REMANDED Entitlement to a temporary total disability rating due to surgery necessitating convalescence due to status post cholecystectomy is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, her currently diagnosed status post cholecystectomy is related to her military service. CONCLUSION OF LAW The criteria for service connection for status post cholecystectomy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in, May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a RO hearing before a Decision Review Officer (DRO) and, in April 2018, she testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. In March 2019 and January 2021, the Board remanded the appeal for additional development and it now returns for further appellate consideration. The Board observes that the Veteran has also perfected an appeal as to the issues of entitlement to an increased rating for adjustment disorder with mixed anxiety and depression and an earlier effective date for such rating; however, as she requested a Board hearing before a Veterans Law Judge in connection with such appeal, those issues will be the subject of a separate Board decision issued at a later date, if otherwise in order. Entitlement to service connection for status post cholecystectomy, claimed as gallstones. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that her September 2013 cholecystectomy was due to polyps she had during her military service. In this regard, her service treatment records (STRs) reveal that, in June 2004, she complained of increased pain in her right upper quadrant and a gallbladder attack was suspected. The Veteran also had an abdominal ultrasound with a noted impression of gallbladder debris and possible polyps or adherent sludge-balls within the lumen of the gallbladder. In April 2014, the Veteran was afforded a VA examination at which time the examiner opined that her gallstones were less than likely as not incurred in, caused by, or a continuation of the complaints/condition during service. In support thereof, he noted that a December 2010 CT of the Veteran’s abdomen revealed no gall bladder calculi and, although there was a record of treatment in service for abdominal pain, no permanent residual or chronic disability subject to service connection was shown by the STRs. However, the examiner did not address the Veteran’s contention that her in-service possible polyps or adherent sludge-balls within the lumen of the gallbladder were the reason for her cholecystectomy. Thus, pursuant to the March 2019 remand, an addendum opinion was obtained in July 2020. At such time, the examiner opined that it was less likely as not that the Veteran’s status post cholecystectomy had its onset in or was otherwise related to her military service. However, the examiner did not address the June 2004 STR indicating that the Veteran had gallbladder debris and possible polys or adherent sludge-balls within the lumen of the gallbladder or her contention that such led to her September 2013 cholecystectomy. Rather, the examiner noted that the there was one episode of right upper quadrant pain in June 2004, which was resolved. Accordingly, another addendum opinion was obtained in March 2021. At such time, the examiner opined that the Veteran’s status post cholecystectomy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support thereof, he explained that a 2005 CT scan was negative for any significant findings of the gallbladder, including stones, and had polyps been present, it was almost certain they would have been noted. The examiner also noted that possible polyps versus sludge was noted on the June 2004 in-service sonogram, but indicated that the CT scan was the far sensitive study. He further explained that a CT scan in 2010 was negative for polyps or stones; rather, a July 2013 ultrasound was the first documented evidence of polyps. Thus, the examiner concluded that it was highly unlikely that any possible findings on the 2004 gallbladder sonogram could have existed for a period of 9 nine years and not required intervention. Thus, he found that it was more likely than not that the polyps found on the ultrasound in 2013 arose after December 2010. Furthermore, while Dr. R.M. opined in October 2020 that the Veteran’s gallbladder condition causing polyps at least as likely as not began service, and continued thereafter, ultimately requiring a cholecystectomy in September 2013, he did not provide a rationale for such opinion. Rather, he simply noted the timeline of events, i.e., the Veteran’s in-service treatment in 2004 and subsequent diagnosis in 2013. Thus, such opinion is insufficient to establish service connection. However, in April 2021, Dr. R.M. reiterated his October 2020 opinion, but further supported his conclusion by citing to several articles that noted that gallstones or biliary sludge was a risk factor for gallbladder polyps, and gallbladder polyps were associated with gallbladder sludge. Another article also noted that gallbladder sludge may go away and recur at a later time. Thus, Dr. R.M. concluded that, while the CT scans performed in 2005 and 2010 did not show gallbladder polyps, it was common for gallbladder sludge to go away and recur at a later time. Consequently, he found that, because the Veteran suffered from gallbladder sludge during service, such likely continued and ultimately led to her development of gallbladder polyps and resulting cholecystectomy. After a review of the above, the Board finds the evidence of record is in equipoise as to whether the Veteran’s status post cholecystectomy is related to her military service. In this regard, the VA examiner and Dr. R.M., who rendered the March 2021 and April 2021 opinions, respectively, are both competent medical professionals who considered the relevant facts and accepted medical principles, and provided rationales for the opinions. Consequently, their opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that her status post cholecystectomy is related to her military service. Thus, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to a temporary total disability rating due to surgery necessitating convalescence due to status post cholecystectomy. The Board initially finds that a remand is necessary to obtain outstanding private treatment records. In this regard, the evidence of record indicates that the Veteran underwent a cholecystectomy in September 2013. Specifically, an August 2013 letter from Dr. D.S. noted that the Veteran was to be scheduled for such surgery at the St. John 23 Mile Surgical Center in Macomb Township on September 17, 2013. However, the treatment records regarding such surgery, including post-operative treatment records, have not been included in the Veteran’s file. Thus, a remand is warranted to obtain all outstanding records from such medical facility. Thereafter, the Agency of Original Jurisdiction (AOJ) should implement the Board’s award of service connection for status post cholecystectomy, which will result in the assignment of an initial rating for such disability, which should include consideration of whether a temporary total disability rating due to surgery necessitating convalescence is warranted. The matter is REMANDED for the following action: 1. The Veteran should be requested to submit or authorize VA to obtain her records from St. John 23 Mile Surgical Center in Macomb Township. Following the receipt of any necessary authorization from the Veteran, attempt to obtain such outstanding records by making at least two (2) attempts to obtain them. If the records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. 2. Thereafter, the AOJ should implement the Board’s award of service connection for status post cholecystectomy, which will result in the assignment of an initial rating for such disability, which should include consideration of whether a temporary total disability rating due to surgery necessitating convalescence is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.