Citation Nr: 18153975 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-40 594 DATE: November 28, 2018 REMANDED The claim of entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1969, with service in Vietnam. The Veteran is in receipt of the Purple Heart, among other awards. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third 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 active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, VA treatment records from April 2015 show a diagnosis of mild positional obstructive sleep apnea syndrome with mild arterial oxygen desaturations. The Veteran claims that he has sleep apnea that is secondarily related to his service-connected diabetes mellitus, type II. See November 2018 Written Brief Presentation. In addition, the Veteran cited to a 2013 Family Medicine study that indicated that individuals with diabetes mellitus, type II, had a heightened chance of being diagnosed with sleep apnea. Diabetes mellitus, type II, is a service-connected disability. Because there is evidence of currently diagnosed disability and an indication that the current disabilities may be associated with a service-connected disability, remand for a VA examination is required. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his obstructive sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had onset in, or is otherwise related to, active military service, to include his conceded exposure to Agent Orange therein. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the obstructive sleep apnea is caused or aggravated by the service-connected diabetes mellitus, type II. The examiner must also specifically address the argument and citations to medical literature contained in the November 2018 Written Brief Presentation submitted by the Veteran’s representative. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel