Citation Nr: A25035234 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240618-448918 DATE: April 16, 2025 REMANDED Service connection for status-post sleeve gastrectomy is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to January 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2024 rating decision of the Department of Veterans Affairs (VA). In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In January 2024, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a January 2024 rating decision, which adjudicated the issue on appeal. In May 2024, the AOJ issued the rating decision on appeal and denied the issue of service connection for status-post sleeve gastrectomy because the evidence submitted is not new and relevant; however, the AOJ adjudicated the issue of service connection based on the evidence of record at the time of that decision and concluded that the previous denial of this claim was confirmed. To the extent that the AOJ readjudicated the issue of service connection for status-post sleeve gastrectomy, it implicitly found that the Veteran had submitted evidence to readjudicate the issue because it adjudicated the issue on the merits. Because the AOJ made that favorable finding, the Board will adjudicate the issue on the merits. See 38 C.F.R. § 20.801. 1. Service connection for status-post sleeve gastrectomy is remanded. After a thorough consideration of the evidence considered at the time of the May 2024 rating decision, the Board finds a remand is necessary in order to cure a pre-decisional duty to assist errors. It is unclear from the record whether the Veteran has a current disability associated with the status-post sleeve gastrectomy. The AOJ obtained a VA opinion in October 2023; however, no in-person VA examination has been afforded to the Veteran. As such, a remand is necessary in order to properly adjudicate this appeal. The matters are REMANDED for the following action: 1. The AOJ should arrange for an in-person VA examination of the Veteran to determine the nature and likely cause of any residuals of the sleeve gastrectomy. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran with all necessary diagnostic testing, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all residual disabilities of the sleeve gastrectomy, including any scars, during the appeal period (from September 2023). (b.) For each residual disability of the sleeve gastrectomy, including any scars, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. (c.) For each residual disability of the sleeve gastrectomy diagnosed, including any scars, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to the service-connected non-ischemic cardiomyopathy with left ventricular muralthrombosis? (d.) For each residual disability of the sleeve gastrectomy diagnosed, including any scars, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated, i.e., worsened beyond its natural progression, by the service-connected non-ischemic cardiomyopathy with left ventricular muralthrombosis? (e.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected non-ischemic cardiomyopathy with left ventricular muralthrombosis caused him to become obese; if so, whether the obesity was a substantial factor in causing any diagnosed residual disabilities of the sleeve gastrectomy; and whether this disability would not have occurred but for the obesity. The examiner must specifically consider the Veteran's description of his current symptoms. A complete rationale must be provided for all opinions expressed. When providing the requested opinions, the examiner is asked to state whether the evidence is in approximate balance or nearly equal in the Veteran's favor. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner 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. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Meawad, Julie 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.