Citation Nr: 22012602 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-49 099 DATE: March 4, 2022 REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1970 to March 1972. In October 2021, the Veteran testified at a virtual conference hearing before the undersigned. A transcript of the hearing is associated with the claims file. Entitlement to service connection for obstructive sleep apnea is remanded. Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. First, a remand is necessary to obtain missing private treatment records as the Veteran has testified that he is currently undergoing treatment at a private medical facility. However, no such records have been associated with the Veteran's claims file. On remand, the Veteran should be requested to identify and to authorize the release of those records, and the RO must make reasonable efforts to obtain the records including an initial request and at least one follow-up request if necessary. See 38 C.F.R. § 3.159(c)(1). All efforts to obtain private medical records must be documented. Second, the Veteran has not been afforded a VA examination with respect to his claim of service connection for obstructive sleep apnea. VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. 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 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). Here, medical evidence reflects that the Veteran has been diagnosed with obstructive sleep apnea in October 2014. See February 2016 Medical Treatment Record Non-Government Facility. He has asserted that during service, over the course of one and a half years, he had inconsistent sleep from working odd and extended shifts. He also stated that during service, he was almost thrown out of quarters, and was told that he snored and would act like he was choking, and that he would fall asleep on duty. Given this indication that the Veteran suffered symptoms that could indicate the onset of sleep apnea during service, remand for a VA examination and etiological opinion is warranted. See McLendon, 20 Vet. App. at 83-86; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The examiner should also consider the Veteran's theory that his sleep apnea is related to his inconsistent sleep during service. Finally, the Board notes that two private disability benefits questionnaires (DBQs) provided by Dr. S.J.F. was associated with the Veteran's claims file in July 2015 and February 2016. However, the July 2015 DBQ shows that an accompanying letter from Dr. S.J.F. was also submitted but does not appear to be a part of his claims file. As this matter is being remanded, the Veteran should be afforded another opportunity to submit such letter. Additionally, the February 2016 DBQ lacked a nexus opinion and is of little probative value in deciding the Veteran's claim. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify any relevant medical records. Thereafter, with the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file the entirety of the Veteran's VA and private medical records. All attempts to obtain these records pursuant to 38 C.F.R. § 3.159(c) must be documented. 2. Thereafter, schedule an examination with an appropriate examiner to determine the nature and etiology of the Veteran's obstructive sleep apnea. The claims file should be made available to the examiner for review. Based on review of the record, and the examination of the Veteran, the examiner should respond to the following: (a.) Obtain a detailed history of the Veteran's obstructive sleep apnea, to include any and all symptomatology. (b.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's obstructive sleep apnea had its onset in or is related to service, to include working long and inconsistent shifts and having short sleep time? The examiner must address the Veteran's October 2021 Board hearing testimony, including being told in service that he snored loudly and sounded like he was choking while sleeping. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.