Citation Nr: 20021629 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-44 522 DATE: March 26, 2020 REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to depressive disorder and service-connected diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1966 to December 1969. In July 2016, the Veteran filed a claim seeking, in pertinent part, service connection for OSA. In a September 2016 rating decision, the RO denied the claim. In October 2016, the Veteran filed a timely notice of disagreement with the denial. In December 2016, the RO issued a statement of the case, and the Veteran perfected an appeal in December 2016. In October 2018, the Board of Veteran’s Appeals (Board) issued a decision which denied entitlement to service connection for OSA. Prior to the issuance of the Board’s October 2018 decision, in March 2017 the Veteran’s attorney submitted a brief with additional evidence to include medical records and a private evaluation and opinion. Such evidence was not associated with the Veteran’s record prior to the Board’s October 2018 decision. Therefore, as will be discussed further below, in regards to the Veteran’s claim for entitlement to service connection for OSA, a vacate is required.   ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. In February and May 2019, the Veteran’s attorney submitted a motion for reconsideration and a motion to vacate to the Board indicating that the basis for the Board’s prior denial was based on incomplete and inaccurate information. The Veteran’s attorney argued that medical records and a private examination and opinion which were constructively of record had not been reviewed or considered by the Board. Accordingly, in order to prevent prejudice to the Veteran, the October 2018 Board decision in regards to the issue of entitlement to service connection for OSA must be vacated, and a new decision will be entered as if the October 2018 decision by the Board had never been issued. REMAND Entitlement to service connection for OSA, to include as secondary to depressive disorder and service-connected diabetes mellitus, is remanded. The Veteran contends that he suffers from OSA as a result of his acquired psychiatric disorder to include depressive disorder as well as his service-connected diabetes mellitus. The Board notes that the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of OSA or other sleep or respiratory problems. However, post-service the Veteran was diagnosed with OSA as well as acquired psychiatric disabilities and diabetes mellitus. Furthermore, in the Board’s October 2018 decision, the Veteran was granted service connection for diabetes mellitus, but his claim for service connection for an acquired psychiatric disability was remanded for further development and adjudication. In March 2017 the Veteran’s representative submitted a private examination and opinion as to the Veteran’s OSA. The private examiner noted that the Veteran suffered from OSA and opined that it was as likely as not that that the Veteran’s depressive disorder and diabetes mellitus aided in the development of and permanently aggravates his severe OSA. However, the Board notes that the majority of the examiner’s rationale focused on a correlation between OSA and psychiatric disabilities. The examiner merely stated that adults with diabetes are at a higher risk of developing OSA. As the Veteran is not currently service connected for a psychiatric disability, secondary service connection cannot be granted as a result of such at this time and the rationale is not enough to support service connection as secondary to the Veteran’s service-connected diabetes. However, the Board finds that the Veteran’s claim for service connection for OSA is inextricably intertwined with the claim for service connection for an acquired psychiatric disability, because a grant of the latter service connection claim could significantly change the adjudication of the issue of service connection for OSA. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Consideration of the issues of service connection for OSA must, therefore, be deferred until the intertwined issue is resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Furthermore, the Board notes that the Veteran has not been afforded a VA examination in relation to his OSA, and therefore one should be conducted to determine the likely nature and etiology of the Veteran’s claimed condition. While as previously noted, the Veteran’s service treatment records are silent for any complaints, treatment or diagnosis of OSA, his post-service treatment records are not. Furthermore, the Veteran is service connected for diabetes mellitus and his claim for service connection for an acquired psychiatric disability is still pending. Therefore, on remand a VA examination to determine if the Veteran’s OSA was caused or aggravated by his active duty service or his service-connected diabetes mellitus or acquired psychiatric disability should also be conducted. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be provided with a VA examination to determine the nature and etiology of his claimed OSA. The claims file should be made available to the examiner. The examiner should respond to the following: A) Identify all manifestations of the Veteran’s OSA. (1) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s OSA is related to his service? (2) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s OSA was caused OR aggravated by his acquired psychiatric disability and/or his service-connected diabetes mellitus? For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. (Continued on next page)   The rationale for any opinion offered should be provided. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.