Citation Nr: 1321384 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-49 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected major depressive disorder and hypertrophic inferior nasal turbinates with nasal obstruction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for obstructive sleep apnea, to include as secondary to her service-connected major depressive disorder and hypertrophic inferior nasal turbinates with nasal obstruction. In support of her claim, she submitted articles showing possible links between depression and sleep apnea. Review of the claims file shows that the Veteran has not been provided a VA examination to determine the etiology of her sleep apnea. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The articles submitted by the Veteran, while not sufficient to determine that her sleep apnea was caused or aggravated by her depression, are sufficient to meet the low threshold under McLendon. Therefore, a remand for the scheduling of a VA examination is warranted to determine the etiology of her sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records for the Veteran form the Biloxi, Mississippi, VA Medical Center and any associated outpatient clinic dated from February 2010 to the present. All attempts to obtain those records must be documented in the claims file. 2. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 3. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of her obstructive sleep apnea. The claims file and a copy of this remand must be provided to the examiner in conjunction with the examination. The examiner must perform any necessary diagnostic tests and studies. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea is related to service. If the examiner determines that the Veteran's sleep apnea is not related to service, then the examiner must also indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was caused or aggravated by a service-connected disability, such as major depressive disorder or hypertrophic inferior nasal turbinates with nasal obstruction. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions must be provided. 4. Then, re-adjudicate the claim of entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected major depressive disorder and hypertrophic inferior nasal turbinates with nasal obstruction. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and her representative and an appropriate period of time in which to respond. Then, return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).