Citation Nr: 18157593 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-39 495 DATE: December 13, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to May 1993. While the Board regrets the delay, additional development is required before the Veteran’s claim is decided. The Veteran seeks service connection for sleep apnea, which he contends is related to his active military service. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310 (2017). The Board notes that VA must provide a medical examination or obtain a medical opinion 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 that certain diseases manifested 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Initially, the Board observes the Veteran has a current diagnosis of obstructive sleep apnea, which has been treated with continuous positive airway pressure (CPAP) therapy. Though the Service Treatment Records (STRs) do not reflect a diagnosis of or treatment for a sleep disorder, the Veteran asserts he experienced symptoms associated with sleep apnea during service. Additionally, in a November 2016 statement, the Veteran’s spouse indicated that she noticed the Veteran’s symptoms of sleep apnea in 2003. Further, the medical evidence of record reflects the Veteran’s service-connected back disability and acquired psychiatric disorder have been productive of chronic sleep impairment. Additionally, the Veteran’s VA treatment records include multiple forms of consent for long-term opioid therapy, which identify sleep apnea as a known risk of opioid therapy. In this regard, the Board notes the Veteran’s service-connected low back disability, lumbar radiculopathy, and knee disability have been treated with opioid therapy. Moreover, the Veteran has been identified as a possible chronic opioid therapy patient. In this case, no VA examination has been obtained to address the Veteran’s claim of entitlement to service connection for sleep apnea. Under the circumstances outlined above, the Board finds the low threshold required to obtain VA examinations and opinions has been satisfied; thus, VA must provide such examination pursuant to McLendon. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim including any recent or additional treatment records related to the claimed disability. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion with respect to: • Whether the Veteran’s sleep apnea was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service. • Whether the Veteran’s sleep apnea was at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. In doing so, the examiner must consider and discuss the effect of treatments and medications prescribed for the Veteran’s service-connected disabilities, to specifically include opioid therapy. If the examiner concludes the Veteran’s sleep apnea was aggravated beyond its natural progression by a service-connected disability, he or she should provide, if possible, a baseline level of disability for the sleep apnea prior to aggravation. For the purposes of these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. 3. Finally, undertake any other development determined to be warranted, and readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel