Citation Nr: 21031247 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-07 105 DATE: May 21, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 2004 to August 2008. This matter comes before the Board of Veterans' Appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was conducted by the undersigned Veterans Law Judge in January 2021 and a hearing transcript has been associated with the record. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea had its onset during or was the result of his active service and should be afforded a VA examination to determine the etiology of the condition. See Hearing Transcript (pg. 4). During his hearing, the Veteran mentioned possible theories for his obstructive sleep apnea to include exposure to burn pits in Iraq, an undiagnosed illness and head trauma. See Hearing Transcript (pg. 5,7). Furthermore, in an October 2015 claim, the Veteran contends that his obstructive sleep apnea is secondary to posttraumatic stress disorder (PTSD). However, the Veteran is not currently service connected for PTSD. Although the Veteran's service treatment records are negative for any treatments or diagnoses related to obstructive sleep apnea, in August 2008, during his post-deployment screening, it was noted that the Veteran had trouble staying asleep. Further, in a September 2008 Traumatic Brain Injury (TBI) evaluation for his head injuries, the Veteran stated that he had some difficulties falling asleep. In a March 2015 medical treatment note, the examiner noted that the Veteran stated that he has been having difficulty staying asleep at night and is sometimes awaken with a headache. In May 2015, after undergoing a sleep study, the Veteran was diagnosed with mild obstructive sleep apnea. The Veteran also provided statements from his wife and former roommate in service about his obstructive sleeping patterns. In determining whether the duty to assist requires VA to provide a medical examination or medical opinion 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. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this 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 a veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has been diagnosed with obstructive sleep apnea and has had complaints about his sleeping problems within a year of deployment. Furthermore, the Veteran has provided statements from both his wife and fellow servicemember who witnessed his symptoms during his time of service. The Board notes that the medical evidence of record is not sufficient to adjudicate the claim. Therefore, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed obstructive sleep apnea and to address the lay statements provided, as well as, his medical records. McLendon v. Nicholson, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed obstructive sleep apnea. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history from the Veteran of observable symptomatology. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed obstructive sleep apnea is related to an in-service injury, event, or disease to include exposure to burn pits and head injuries? The examiner should indicate whether the obstructive sleep apnea at least as likely as not (i) began during active service, (ii) manifested within one year after discharge from service, or (iii) were noted during service with continuity symptomatology since service. Ensure that any medical opinion obtained includes a complete rationale for the conclusions reached. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, Associate 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.