Citation Nr: 21028177 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-17 199 DATE: May 10, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected Diabetes Mellitus, Type II (diabetes) and service-connected posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1965 to February 1968. In December 2019, the Board of Veterans' Appeals (Board) denied entitlement to service connection for sleep apnea, to include as secondary to diabetes. The Veteran appealed the December 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in December 2020, the Court granted a Joint Motion for Partial Remand. The Board's decision denying entitlement to service connection for sleep apnea was vacated and remanded for consideration of sleep apnea as secondary to the Veteran's service-connected diabetes and/or PTSD. In the Veteran's December 2020 appellate brief, the Veteran's representative asserted that the December 2019 Board decision did not adequately address the theory of direct service connection. The Veteran asserted in his May 2018 statement of accredited representative that his sleep apnea was "a result of his military service." As a result, the Veteran requested a VA examination to determine a direct link between the Veteran's sleep apnea and exposure to the tactical herbicide Agent Orange in service. However, while the Veteran himself has advanced such a theory, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As there has been no additional evidence submitted to link his sleep apnea to Agent Orange exposure, the Board finds that a VA examination and/or opinion is not required. In the December 2020 Joint Motion for Remand, however, the Court found that the January 2015 examiner, who concluded the Veteran's sleep apnea was less likely than not related to his service-connected diabetes, did not consider whether the Veteran's sleep apnea was aggravated by his diabetes. As a result, the Board finds the opinion inadequate as it failed to address whether or not the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected diabetes. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). Additionally, the December 2019 Board decision did not address whether the Veteran's sleep apnea was approximately due to or aggravated beyond its natural progression by his PTSD. This was despite the issue being reasonably raised by the record. The Veteran reported sleep issues during a November 2016 PTSD disability benefits questionnaire. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has not been afforded an VA examination for his sleep apnea as secondary to his service-connected PTSD. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran was diagnosed with sleep apnea in 2004. See August 2014 CAPRI record. The Veteran is service connected for PTSD and indicated in his November 2016 PTSD disability benefits questionnaire that he was having sleeping issues. This included waking up every hour, tossing and turning, and even throwing his continuous positive airway pressure machine in his sleep on multiple occasions. The inability to use his CPAP machine interferes with his ability to obtain a restful night's sleep. As a result, the first three elements of the McLendon analysis have been met. Id. As there is no current, competent evidence of record as to the relation between the Veteran's service-connected PTSD and his sleep apnea, a remand for a VA examination is necessary. Id. On remand the Veteran should be afforded a VA examination to determine if his sleep apnea was aggravated beyond its natural progression by his diabetes and/or if the Veteran's sleep apnea is proximately due to or aggravated by his service-connected PTSD. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his sleep apnea claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether is at least as likely as not (a) caused, or (b) aggravated (worsened beyond natural progression) by the Veteran's service-connected diabetes or PTSD. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. ROBERT N. SCARDUZIO Acting 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.