Citation Nr: 18160080 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 14-40 490 DATE: December 21, 2018 REMANDED The claim of entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 1965 to August 1968. The Veteran served in Vietnam. This matter is before the Board of Veteran’s Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Service connection for sleep apnea is remanded. The Veteran contends that he is entitled to service connection for sleep apnea that developed from his in-service herbicide agent exposure. See September 2014 Statement in Support of Claim. In September 2014, the Veteran requested a Compensation and Pension Exam for sleep apnea. To date, the claim was not submitted for a VA examination. In other words, there is currently no competent opinion of record as to whether it is at least as likely as not that the Veteran’s current sleep apnea manifested during, or as a result of, active military service, to include his presumed exposure to Agent Orange. A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). The record confirms that the Veteran served in Vietnam during this time period, and as such, his exposure to herbicidal agents such as Agent Orange is not in dispute. 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. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA treatment records clearly reflect a current diagnosis of sleep apnea. Therefore, the existence of a present disability is not in question. The Veteran also has presumed exposure to Agent Orange that he contends may have resulted in his sleep apnea. What is missing is element three – evidence demonstrating that the Veteran’s current disability may be related to military service. As such, a VA examination is necessary before appellate review may proceed on this issue. The matter is REMANDED for the following action: 1. Obtain a VA medical opinion from an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s sleep apnea. The claims file must be made available to and be fully reviewed by the examiner including a copy of this remand. It should be noted in the record that these items were reviewed. Following a review of the casefile and remand, the examiner must state opinions as to whether: (a) it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused by or is otherwise etiologically related to his military service, to include his presumed exposure to herbicidal agents such as Agent Orange. In doing so, the examiner must consider and discuss any lay statements of record indicating that sleep apnea is related to any herbicide agent exposure the Veteran may have been experienced in-service, and (b) since the Veteran’s representative argues that there are “anecdotal studies” suggesting a link between cancer and sleep apnea, the examiner must provide a rationale indicating whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was either caused by, or aggravated by, his service-connected prostate cancer. The term “aggravation” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinions, 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 stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question presented. 2. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel