Citation Nr: 21031502 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-38 941A DATE: May 24, 2021 REMANDED Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from March 1964 to March 1967, and he is the recipient of a Purple Heart with two bronze stars, the Combat Action Ribbon, the Naval Reserve Meritorious Service Medal with two bronze stars, and the Vietnam Service Medal with two bronze stars. The Board notes that the Veteran withdrew his request for a Board Hearing in May 2021. See May 2021 Statement in Support of Claim. The Veteran contends that he developed obstructive sleep apnea as a result of in-service exposure to herbicide agents, and that he has experienced airway troubles since service. See August 2010 Private Consultation; see also May 2013 Statement in Support of Claim ("I have been diagnosed with chronic rhinitis and sleep apnea. I have had a sleep study done as well as document[ed] medical treatment for rhinitis since service in Vietnam."). In the alternative, the Veteran claims that his sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD) with major depression. In support of this, the Veteran submitted an article in September 2014 which noted that veterans with PTSD were less compliant with CPAP adherence. In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Thus, there are four elements to review to determine if a medical examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, no VA examination has been obtained to assess the Veteran's sleep apnea disability. However, the Board finds the Veteran has met the low threshold required to obtain a VA examination; as he has provided competent evidence of a current disability; he is presumed to have been exposed to herbicidal agents on account of his service in Vietnam; he has provided an indication that his disability may be associated with his service; and he had provided evidence indicating that his sleep apnea may be secondary to his service-connected PTSD with major depression. As such, the Board finds a VA examination is warranted to determine the nature and etiology of the Veteran's sleep apnea. On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through September 16, 2015, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after September 16, 2015, with the Veteran's claims file. 2. Give the Veteran the opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. The Veteran should be afforded a VA examination to determine whether his sleep apnea had its onset during, or is otherwise related to, his military service, to include his presumed exposure to herbicide agents; or whether such is secondary to his service-connected PTSD with major depression. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his claimed disability. Following a review of the record, the examiner is asked to provide a response to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran sleep apnea is related to his military service, to include his presumed in-service exposure to herbicide agents? The examiner should consider the Veteran's statement that he has been diagnosed with both rhinitis and sleep apnea and has experienced symptoms of rhinitis since his service in Vietnam. The examiner is advised that a negative opinion cannot be based solely on the fact that sleep apnea is not on the list of diseases that are presumptively associated with exposure to herbicide agents. b) Notwithstanding the above, is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated beyond its natural progression by his service-connected PTSD with major depression? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. In providing a response to this question, attention is drawn to the article submitted in September 2014 which noted that veterans with PTSD were less compliant with CPAP adherence. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology. A complete rationale must be provided for any opinion provided and must be based on consideration of all pertinent lay and medical evidence. 4. Thereafter, readjudicate the claim. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.