Citation Nr: 18157944 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-58 609 DATE: December 13, 2018 REMANDED The issue of entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to July 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran’s claim of entitlement to service connection for OSA was initially denied in an August 2008 rating decision. The RO notified the Veteran in a denial letter dated later that month, but the Veteran did not appeal the decision and did not submit relevant evidence within one year of the decision. Therefore, the claim became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Since the August 2008 denial, new and material evidence in the form of VA treatment records and lay statements has been associated with the claims file. Some of this evidence relates to previously unestablished facts. Thus, the claim for service connection for OSA is reopened, and the Board will proceed with an adjudication of the underlying service connection claim on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110, 122 (2010). While further delay is regrettable, the Board finds that additional development is necessary prior to adjudication of the Veteran’s service connection claim. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. A medical examination or medical opinion is necessary in a claim for service connection if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The first prong of McLendon is satisfied because the record contains a documented history of persistent OSA symptoms. Specifically, an October 1997 Overnight Oximetry Study Report documented “suggestive of REM dependent obstructive sleep apnea.” A June 2006 Polysomnography Report revealed an impression of obstructive sleep apnea. A November 2015 sleep consultation documented a diagnosis of obstructive sleep apnea. The second and third prongs of McLendon are satisfied as well because the Veteran credibly reports experiencing sleep problems during service and there is competent evidence which suggests his current sleep apnea may be related to the reports of sleep trouble in service. Specifically, in a September 2014 affidavit, R.R.R. stated that he observed the Veteran snoring in service. In an August 2014 affidavit, W.O.M. reported that he observed the Veteran snoring in service. In an October 2014 affidavit, the Veteran’s spouse recalled observing the Veteran exhibiting OSA symptoms in service, stating the Veteran snored, gasp for air while sleeping, and reported feeling tired during the day. She indicated that the Veteran exhibited these symptoms throughout his period of service. In an October 2014 affidavit, A.R.M. stated that he observed the Veteran snoring in service. In light of the foregoing, the Board finds that the low threshold of the McLendon standard has been met in this instance and that the Veteran should be afforded a VA examination to determine whether a causal relationship exists between the current sleep apnea disorder and service. McLendon, 20 Vet. App. at 81. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate medical professional to ascertain the nature and etiology of his sleep apnea. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a.) Is it clear and unmistakable (i.e., undebatable) that the Veteran had sleep apnea prior to commencement of active service in March 1988? (b.) If it is clear and unmistakable that sleep apnea pre-existed active service commencing in March 1988, is it also clear and unmistakable that the disorder was not aggravated (i.e., permanently worsened) during service between March 1988 and July 1994? In other words, if there was any increase in disability during service, is it undebatable that such increase was due to the natural progress of the disorder? (c.) In answering (a) and (b), please address the Veteran’s lay statements, and the service treatment records dated prior to and following active duty. (d.) If the response to (a) is negative, the examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s sleep apnea began in service or is otherwise related to service? (e.) If the examiner determines that the sleep apnea did not have its onset in service, or within one year of separation from service, he or she should provide an opinion as to the most likely etiology of the sleep apnea. In the event that the examiner determines that weight gain is the most likely etiology of the sleep apnea, the examiner should offer an opinion as to whether it is at least as likely as not that the weight gain was caused by service, to include whether any weight gain is at least as likely as not related to an inability to exercise secondary to degenerative disc disease. (f.) If the examiner cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Continued on next page) S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel