Citation Nr: 21070966 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 20-01 722 DATE: November 29, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected respiratory disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 and September 2021, the case was remanded for further development. Entitlement to service connection for sleep apnea, to include as secondary to service-connected respiratory disability is remanded. Pursuant to the September 2021 remand, addendum opinions were obtained concerning the likelihood that the Veteran's sleep apnea is related to asbestos exposure in service and/or has been caused or aggravated by his service-connected respiratory disability. In September 2021, a VA contract physician opined that the Veteran's current sleep apnea is less likely than not related to asbestos exposure in service, indicating that asbestos exposure has not been conclusively proven to cause sleep apnea. Similarly, the contract physician opined that the Veteran's current sleep apnea was less likely than not caused by his service-connected respiratory disability, COPD, chronic bronchitis and emphysema associated with asbestos exposure, indicating that chronic obstructive pulmonary disease, chronic emphysema and chronic bronchitis associated with asbestos exposure have not been conclusively proven to cause obstructive sleep apnea. The Board notes that conclusive proof that there is a casual relationship between asbestos exposure in service and the Veteran's sleep apnea and/or conclusive proof that there is a casual relationship between the Veteran's service-connected respiratory disability and his sleep apnea is not necessary to award service connection for sleep apnea. Rather, such relationships must simply be shown to be at least as likely as not, a much lower standard. Consequently, the contract physician's findings concerning this lack of conclusive proof is not an adequate basis for concluding that these relationships are less likely than not. Accordingly, a further remand is required to obtain adequate medical opinions concerning the likelihood that the Veteran's sleep apnea is related to asbestos exposure in service and/or has been caused by his service-connected respiratory disability. Concerning the likelihood that the Veteran's current sleep disability has been aggravated by his service-connected respiratory disability, the September 2021 VA contract physician determined that there was no evidence that the Veteran's service-connected respiratory disability aggravated his sleep apnea beyond natural progression. As this opinion is somewhat vague and as the case must be remanded anyway, on remand, an addendum opinion concerning the likelihood that the Veteran's service-connected respiratory disability has aggravated his sleep apnea should also be obtained. Prior to obtaining the addendum opinions, the agency of original jurisdiction (AOJ) should obtain updated VA treatment records dated from June 2021 to the present. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated from June 2021 to the present. 2. Arrange for addendum opinions from an appropriate clinician. The clinician should review the claims file before providing the opinions. This review should include the service treatment records; pertinent post-private treatment records, including a July 2007 sleep study showing a diagnosis of obstructive sleep apnea; pertinent VA treatment records, the July 2018 VA sleep apnea examination with accompanying medical opinion; the October 2020 VA contract sleep apnea examination with accompanying medical opinion; the September 2021 VA contract physician's addendum opinions; and any other information of record deemed pertinent. The clinician should then provide opinions in answer to the following questions: A) Is it at least as likely as not that the Veteran's current sleep apnea is directly related to service, including exposure to asbestos therein? (The examiner is advised that the evidence has established that the Veteran was exposed to asbestos during service). B) Is it at least as likely as not that the Veteran's service-connected COPD, chronic bronchitis, and emphysema has caused his sleep apnea? C) Is it at least as likely as not that the Veteran's service-connected COPD, chronic bronchitis, and emphysema has aggravated his sleep apnea? If aggravation is found, the examiner should identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the service-connected disability. The clinician should explain the rationale for each opinion provided. The clinician is advised that conclusive proof is not required; the standard is at least as likely as not (50% or greater probability). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.