Citation Nr: 21073781 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 18-22 523 DATE: December 10, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 2003 to April 2005, to include service in Iraq. He also had service in the Army National Guard, to include a period of active duty for training from September 1998 to January 1999. His decorations include the Combat Action Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran and his spouse testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks to establish service connection for sleep apnea. He has advanced argument to the effect that the condition is due to his service in the Persian Gulf and/or was caused or has been aggravated by his service-connected posttraumatic stress disorder (PTSD). In a statement appended to a June 2021 Disability Benefits Questionnaire (DBQ), a private physician opined that the Veteran's obstructive sleep apnea (OSA) was "presumptive and attributable to his Active Duty Military Service in Iraq in 2004 and 2005, as well as a secondary condition to his [service-connected] PTSD (also claimed as Depression)." The physician indicated that the Veteran had diagnoses of OSA and periodic limb movement disorder (PLM), both diagnosed in September 2015. The physician stated that VA had recognized that, for Gulf War Veterans, certain unexplained clusters of symptoms existing for a period of six months or more are associated with military service in the Persian Gulf. The physician noted that the illnesses include medically unexplained clusters of symptoms, and that sleep disturbances are listed as an associated illness. The physician also cited reports from the National Institutes of Health, the National Center for PTSD, Baylor College of Medicine, the American Academy of Sleep Medicine, and the Journal of Clinical Sleep Medicine indicating an increased comorbidity or possible link between PTSD and OSA. The Veteran testified at the July 2021 Board hearing that he had not had any issues with sleeping prior to his deployment to Southwest Asia, but after he returned, and not long after he was discharged from active duty, he began to snore and gasp for air when he slept. He noted that he was always tired and had occasional headaches, and that after he married his spouse (in 2011), she informed him that he stopped breathing at night. He claimed that there were burn pits next to his living quarters overseas, and that there was also burning along the firing line. He stated that his symptoms began in approximately late 2005, and after he informed VA of his difficulties sleeping, he was sent for a sleep study. Although the Veteran's private physician has opined that there is a nexus between the Veteran's OSA and his service in the Persian Gulf, as well between his OSA and his PTSD, the Board finds that further clarification is necessary before a decision can be rendered on the claim. The Board first notes that the Veteran has been formally diagnosed with OSA. The question for the Board's consideration in that regard, in terms of applying any presumptions, is whether OSA can properly be considered an undiagnosed illness or medically unexplained chronic multi-symptom illness. The private opinion does not address that matter with clarity. In addition, regarding the private physician's conclusion that the Veteran's OSA is secondary to his PTSD, the basis for that conclusion is unclear. Although, as noted, the physician cited a variety of reports generally indicating that there may be an increased comorbidity or possible link between PTSD and OSA, the physician did not discuss the Veteran's individual risk factors or supply a substantive rationale, based on the unique facts of the Veteran's case, as to why he believed it was likely that the Veteran's OSA had been caused by PTSD or aggravated beyond natural progression by PTSD. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), a VA medical examination is deemed "necessary" and must be provided if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) 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. 38 C.F.R. § 3.159(c)(4). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. See McLendon, 20 Vet. App. at 83 (also holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). In the present case, there is evidence indicating that the Veteran's OSA may be associated with service or a service-connected disability, but insufficient evidence to decide the claim. Under the circumstances, a VA examination is warranted. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination with an appropriate clinician for purposes of assessing the etiology of his sleep apnea. The examiner should review the record. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether the signs and symptoms associated with the Veteran's sleep apnea are most consistent with: (a) an undiagnosed illness, (b) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, (c) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (d) a disease with a clear and specific etiology and diagnosis. If it is the examiner's conclusion that the Veteran's disability pattern with respect to the signs and symptoms at issue is most consistent with a diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner should offer a further opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, service. If it is the examiner's opinion that it is unlikely that the Veteran's sleep apnea had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that the Veteran's sleep apnea has been (a) caused or (b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by the Veteran's service-connected PTSD. In so doing, the clinician should specifically discuss the Veteran's statements regarding the onset and continuity of his symptoms, as well as the June 2021 report and opinion provided by the Veteran's private physician and the medical sources cited therein. The clinician must provide a comprehensive rationale for all opinions expressed. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, Counsel 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.