Citation Nr: 18153761 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-26 286 DATE: November 29, 2018 REMANDED Entitlement to service connection for sleep apnea is remanded. REASON FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1988 to August 1992. Service connection for sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea is due to his period of service. The duty to assist includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). When service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist, as well as an obligation to search alternative forms of medical evidence which may support the Veteran’s claims. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). In this case, the Veteran asserts that his sleep apnea is due to service. The Veteran has been diagnosed with sleep apnea since at least 2009 and qualified for a split-night polysomnogram (PSG) with CPAP titration as recently as 2015. A May 2018 VA Memorandum gave a formal finding on the unavailability of service treatment records. Because the Veteran’s service records are unavailable, the VA has a heightened duty to assist. The Board finds that there is a current diagnosis, competent reports of sleep apnea symptoms in service, and that the evidence indicates a nexus may be associated with the Veteran’s service, thus satisfying the requirements of McLendon. See Notice of Disagreement dated June 2016. McLendon, 20 Vet. App. at 81-86. The Veteran has not been afforded a VA examination to determine the nature and etiology of his sleep apnea. See 38 C.F.R. § 3.159(c)(4). Therefore, a remand is necessary. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of sleep apnea. The claims file must be made available to, and reviewed by the examiner. The Board notes that the Veteran’s service treatment records are not available. The Veteran’s contentions and submissions regarding his sleep apnea should be considered and addressed. If the examiner determines that an opinion cannot be reached by the evidence within the record, any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea disability is etiologically related to his active service. The rationale for each opinion expressed must also 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 a need for additional information, the examiner should identify the additional information that is needed. 3. Then readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Muzzammel, Associate Counsel