Citation Nr: 21065663 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-53 106 DATE: October 27, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a skin condition is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In May 2021, a hearing was held before the undersigned Veteran's Law Judge; a transcript has been associated with the file. 1. Entitlement to service connection for sleep apnea. The Veteran asserts his sleep apnea is a result of his currently service-connected asthma. He has not been provided a VA examination to determine if his current sleep apnea is related to his asthma condition. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease OR a service-connected disability, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. At 83. The Veteran was diagnosed with mild obstructive sleep apnea in a February 2013 VA sleep study which is evidence of a current disability. As for the second requirement, the Veteran is already service connected for asthma. In reference to the third McLendon factor, the Veteran's April 2017 VA records state he reported having continuing asthma symptoms to include night-time shortness of breath and nightly awakenings. Additionally, during the May 2021 hearing the Veteran asserted that even with the use of inhaler, prescribed to treat asthma, there are times during the day in which he cannot catch his breath. The Veteran stated that when this occurs, he will use his continuous positive airway pressure (CPAP) machine prescribed for his sleep apnea to help catch his breath. The need for the Veteran to use his inhaler in addition to his CPAP machine during the day to catch his breath is probative enough to meet the low threshold of an "indication" set out by McLendon. On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his sleep apnea condition in relation to his service-connected asthma. 2. Entitlement to service connection for a skin condition. The Veteran asserts he sought treatment through the VA shortly after his separation from service in 1991. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Id. The Veteran's treatment records prior to August 2005 have not been associated with his claims file. Additionally, no finding that the records are unavailable has been established. As a result, a remand is required in order for the RO to make appropriate efforts to locate and obtain the Veteran's VA treatment records for the period prior to August 2005. The matters are REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records for the period prior to August 2005. If the records are not available, please document all negative responses with the Veteran's claims file. 2. Schedule the Veteran for a VA examination for his sleep apnea in relation to his asthma condition. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's sleep apnea at least as likely as not proximately due to his service-connected asthma? (b.) Is the Veteran's sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected asthma? (Continued on the next page) A reasoned medical explanation connecting a clear conclusion to its supporting data must be provided for each opinion. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.