Citation Nr: 21013622 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 12-09 938 DATE: March 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1975 to November 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way pf procedural background, the Board denied the claims in a June 2019 decision. Subsequently, to the extent that these claims were denied, the Veteran timely appealed this decision to the Court of Appeals for Veterans Claims (the Court). While the appeal was pending before the Court, the parties entered into a Joint Motion for Partial Remand (JMPR) in June 2020. Pursuant to the JMPR, the parties agreed that the Board had erred in its June 2019 decision by (1) failing to explain why VA’s duty to assist had been satisfied with respect to the Veteran’s claim for sleep apnea, and (2) failing to provide adequate reasons and bases for finding that the Veteran’s acquired psychiatric condition was not etiologically related to his service. Pursuant to the terms of the JMPR, the Court vacated the portions of the June 2019 Board decision that denied the Veteran’s claims for an acquired psychiatric condition and sleep apnea and remanded the claims consistent with the terms of the JMPR. This matter was last before the Board in October 2020, when it was remanded for further development. In accordance with the October 2020 remand directive, an addendum opinion was obtained in December 2020. The Board finds that the examiner failed to address all current psychiatric conditions that have been present during the pendency of this appeal. Accordingly, a remand is warranted for substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As it pertains to the Veteran’s sleep apnea, the evidence suggests that his sleep apnea may be, at least in part, secondary to his psychiatric disorder (remanded herein). For example, a January 2021 VA examiner noted that frequent trouble sleeping was not a symptom of OSA, but rather of mood disorder. VA psychiatric examination reports also note symptoms of “chronic sleep impairment.” As such, the Board finds that the Veteran’s claim for sleep apnea is potentially intertwined with the claim for service connection for a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, a remand is required. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records, as well as any outstanding, relevant private treatment records. 2. Thereafter, obtain an addendum opinion from a qualified VA professional regarding the Veteran’s acquired psychiatric condition. The claims file, including a copy of this remand, must be made available to the examiner, who must review it in conjunction with providing the addendum opinion and note such review in the examination report. The examiner is the asked to do the following: (a.) Identify all current psychiatric conditions that have been present during the pendency of this appeal, even if they have since resolved. (b.) In particular, the examiner should indicate whether the Veteran has (or has had) diagnoses of PTSD, anxiety disorder, bipolar disorder, schizoaffective disorder, dysthymic disorder, or depressive disorder. See July 2011 VA mental health note (indicating that the Veteran had been given diagnoses of schizoaffective disorder, dysthymic disorder, and anxiety disorder). (c.) For each identified diagnosis, opine as to whether it at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to his service. In doing so, the examiner is reminded to consider the Veteran’s lay statements regarding being held at gunpoint by Italian troops on Sardinia and seeing a dead body floating in the water in Norfolk, Virginia. A complete rationale for these opinions should be provided. 3. If, and only if, service connection for an acquired psychiatric disorder is granted, schedule the Veteran for an appropriate VA examination regarding his diagnosed sleep apnea. The claims file, including a copy of this remand, must be made available to the examiner. The examiner is the asked to do the following: (a.) State whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed sleep apnea is either caused or aggravated by his psychiatric disorder. * The examiner should note that aggravation NEED NOT be beyond the natural progression of the disease for purposes of this claim. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). (b.) The examiner should provide a complete rationale for all opinions 4. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, Associate 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.