Citation Nr: 21015874 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-26 790 DATE: March 18, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected acquired psychiatric disorder, is remanded. Entitlement to service connection for atrial flutter, secondary to obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served in the United States Army from September 1985 to August 1987, June 1989 to October 1995, May 2002 to March 2003, and from March 2003 to January 2004. This appeal comes to the Board of Veterans’ Appeals (Board) from decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge in an August 2018 Board hearing. A transcript of that hearing has been associated with the claims file. The Board remanded the appeal to the AOJ in April 2019 and in November 2020 for additional development. Unfortunately, for reasons outlined below, the Board must remand this case again in order to afford the Veteran every consideration. 1. Service connection for obstructive sleep apnea (OSA) is remanded. The Veteran contends that his sleep apnea is related to his service, to include his service in the Southwest Asian Theater, or in the alternative secondary to his service-connected psychiatric disorder. As noted, in November 2020, the Board remanded this matter to obtain an addendum opinion. The Board specifically directed VA to obtain a medical opinion to address whether the Veteran’s acquired psychiatric disorder caused or aggravated his sleep apnea. The examiner was directed to also determine whether the Veteran’s medication and/or treatment for his psychiatric disorder caused or aggravated his sleep apnea. In November 2020, VA obtained an addendum medical opinion. The examiner opined that the Veteran’s claimed sleep apnea is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner responded that the Veteran’s adjustment disorder with mixed anxiety and depressive disorder is not an established etiology of sleep apnea in the medical literature. The examiner explained that it is more likely due to the Veteran’s obesity, with an BMI greater than 33, which is a well-established cause for sleep apnea in the medical literature. The examiner further found that the Veteran’s sleep apnea is less likely than not aggravated beyond its natural progression. The examiner reasoned that the Veteran’s November 2019 sleep apnea examination demonstrated a condition controlled with C-PAP without presence of functional impact. The examiner explained that this fell within the projected natural history of the condition and did not represent an aggravation beyond the natural progression. The Board finds VA failed to substantially comply with the November 2020 Board remand. A Board remand confers upon the appellant the right to a certain degree of compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2020 Board remand noted that a May 2014 VA examiner noted that the medication the Veteran was taking for his psychiatric symptoms was impacting his ability to sleep. The Board November 2020 remand required an opinion that addressed the Veteran’s medication. The November 2020 examiner failed to address the impact, if any, of the Veteran’s psychiatric medication. As such, the Board finds the VA failed to substantially comply with the November 2020 Board remand, and a remand is required. 2. Service connection for atrial flutters secondary to OSA is remanded. The Veteran is claiming that his atrial flutter is secondary to his obstructive sleep apnea. The Board notes that the probative medical evidence of record, specifically a November 2019 VA examination, suggests that his heart condition is at least as likely as not secondary to sleep apnea. However, at present the Veteran’s sleep apnea has not been found to be service connected. As the Board is remanding the Veteran’s sleep apnea claim, and there is some suggestion that his sleep apnea may be etiologically related to his atrial flutter, these issues are therefore intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified medical professional regarding the Veteran’s obstructive sleep apnea. The examiner shall be provided a copy of the claims file as well as a copy of these remand directives. The examiner must address the following: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s sleep apnea is proximately due to his service-connected psychiatric condition (adjustment disorder with mixed anxiety and depressed mood), or any treatment or medications taken to treat his psychiatric conditions. (b.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s sleep apnea is aggravated beyond its natural progression by his service-connected psychiatric condition (adjustment disorder with mixed anxiety and depressed mood), or any treatment or medications taken to treat his psychiatric conditions. (c.) The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of the need for additional information, the examiner should identify the additional information that is needed. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.