Citation Nr: 22008085 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 19-01 954 DATE: February 11, 2022 ISSUE Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disability. REMANDED Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1994 to November 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference virtual hearing. A transcript of the hearing has been associated with the claims file. The Board notes that pursuant to a July 2, 2021 Privacy Act request, the Veteran's attorney was provided a complete copy of the Veteran's electronic claims file in December 2021; therefore, VA's duties have been fulfilled in this respect. For reasons that are explained below, this matter is remanded to the (AOJ) Agency of Original Jurisdiction (AOJ) for further development. Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disability is remanded. The Veteran contends that his current obstructive sleep apnea is related to active military service. In the alternative, he contends that it is caused by or aggravated by his service-connected major depressive disorder and bilateral knee disabilities. See Board Hearing transcript pgs. 5-8; See also, December 21, 2016, VA Form 21-4138, Statement in Support of Claim. The evidence shows that the Veteran has a current diagnosis of obstructive sleep apnea. An October 8, 2016 Sleep Study reports a diagnosis of borderline obstructive sleep apnea. See also July 3, 2017 treatment records re: borderline sleep apnea; May 21, 2018 treatment records re: diagnosis of sleep apnea. The Veteran has also submitted a May 2016 lay statement from a fellow service member who reported that he was a roommate with the Veteran in the 2nd Battalion, 2nd Marines at Camp LeJeune. This service member reported that he witnessed the Veteran having trouble with allergies, trouble with his tonsils swelling and snoring during service. The service member reported that the Veteran snored badly at times and appeared at times to stop breathing. See May 15, 2017 VA Form 21-4138, Statement in Support of Claim (W.B.); See also December 22, 2016 lay statement re: interrupted breathing at night. April 1996 service treatment records report that the Veteran complained of coughing up phlegm, and having problems swallowing over the past 24 hours. The Veteran was diagnosed with tonsillitis. See also, September1997 service treatment records re: treatment for sore throat, congestion, tonsillitis. The Board notes that the Veteran has also submitted literature that suggests an association between tonsillitis, snoring and sleep apnea. See July 10, 2018 Correspondence/Literature re: Sleep Disorders\Sleep Apnea: Tonsillitis, Snoring and Sleep Apnea. As referenced above, the Veteran has alternatively argued that his service-connected disabilities, to include depression and his bilateral knee disabilities may have caused or aggravated his obstructive sleep apnea. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given the Veteran's lay contentions, coupled with a lay statement submitted on the Veterans' behalf regarding possible in-service symptoms of sleep apnea, and hearing testimony that his service connected disabilities may have caused or aggravated his sleep apnea, the Board finds that the foregoing satisfied the third McLendon element that there be an "indication" that the Veteran's obstructive sleep apnea may be associated with the Veteran's service or with another service connected disability so as to require a VA medical opinion. See McLendon, 20 Vet. App. at 83; see also 38 C.F.R. § 3.159 (a)(1). Accordingly, the claim of entitlement to service connection for obstructive sleep apnea is remanded to provide the Veteran with a medical examination to address both direct service and secondary service connection theories of entitlement. Accordingly, this matter is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination with respect to his service connection claim for sleep apnea. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion on the following: (a.) Whether the Veteran's obstructive sleep apnea at least as likely as not (i.e., a 50 percent or greater probability) had its onset during service or is otherwise related to service. The examiner must provide an explanation for his or her medical opinion. As part of his or her rationale, the examiner is asked to address the lay statements as to the onset of symptoms of sleep apnea. Please see December 21, 2016, VA Form 21-4138, Statement in Support of Claim; See also, May 15, 2017 VA Form 21-4138, Statement in Support of Claim (W.B.). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must not rely solely on the absence of treatment for sleep apnea in service as the basis for a negative opinion. Further, the examiner also may not dismiss the Veteran's complaints of post-service symptoms solely because they are not documented in medical treatment records. (b.) If the answer to (a) is negative, whether the Veteran's sleep apnea is at least as likely as not (i.e., a 50 percent or greater probability) caused by or aggravated (increased in severity) by any of his service-connected disabilities to include major depressive disorder, left knee patellofemoral pain syndrome and right knee arthritis. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must provide an explanation for his or her opinion. As part of his or her rationale, the examiner is asked to address the article submitted by the Veteran, as well as any other medical evidence and literature used in forming his or her opinion. See e.g., July 10, 2018 Correspondence/Literature re: Sleep Disorders\Sleep Apnea: Tonsillitis, Snoring and Sleep Apnea. (Continued on next page.) 2. After completion of the above and any additional development deemed necessary, the RO should then re-adjudicate the Veteran's claim. If the benefits sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.