Citation Nr: 21076384 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-46 419 DATE: December 23, 2021 REMANDED Entitlement to service connection for obstructive sleep apnea, to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2003 to July 2007. The Veteran presented sworn testimony before the undersigned Veterans Law Judge during a March 2019 Board hearing. A transcript has been associated with the claims file. In an August 2019 Board decision, the Board denied service connection for hearing loss and a higher rating for tinnitus; and remanded the issues of service connection for a respiratory condition and for sleep apnea for additional development. Following the 2019 Board remand development, in a June 2021 rating decision, the Veteran's claim for service connection for pulmonary nodules (claimed as breathing difficulty) was granted with a noncompensable rating, effective November 6, 2014. As such, this issue is no longer on appeal before the Board, though he is within the one-year timeframe to file disagreement with the rating decision if he so desires. As for the claim for service connection for sleep apnea, although the Board sincerely regrets the additional delay, another remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board notes that there are two VA medical opinions in the claims file received after the 2019 Board remand. First, the February 2020 opinion is inadequate, as the opinion was based on undiagnosed sleep apnea. However, this is not adequate as the RO was requested to provide a sleep study prior to requesting an opinion. That notwithstanding, the Veteran submitted a private sleep study from November 2020 showing he is, in fact, diagnosed with sleep apnea and that he uses a CPAP. Therefore, the RO requested another opinion in February 2021; however, the Board finds another opinion is warranted. The 2021 examiner stated the Veteran's sleep apnea was not caused by asbestos exposure with no accompanying rationale. The examiner also stated that "there is a lack of service treatment records during service that indicate asbestos exposure during active duty." However, the Veteran's exposure to asbestos in service has been conceded, so this is not accurate. The examiner did cite to medical literature, but that citation only provided an overview of what sleep apnea is and some of the main risk factors, without considering this particular Veteran's medical history or any medical literature that discusses a possible relationship between asbestos exposure and lung diseases, to include sleep apnea. Finally, the examiner did not consider the statement from Dr. W.G. from 2017 that the Veteran had signs and symptoms consistent with asbestos exposure when evaluating him for his sleep apnea. The matter is REMANDED for the following action: Obtain a medical opinion by a suitable clinician to determine the etiology of the Veteran's sleep apnea. The electronic file, including a copy of the Remand, must be reviewed by the VA examiner. An examination is not required unless deemed necessary by the examiner. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused by or aggravated by any in-service event, injury, or disease, to include conceded asbestos exposure? The examiner is asked to review the entire record in conjunction with making the requested opinions. The examiner's attention is drawn to the following: THE VETERAN HAS CONCEDED EXPOSURE TO ASBESTOS DURING SERVICE. Dr. William Glenn stated in a January 2017 letter that the Veteran has signs and symptoms consistent with asbestos exposure and sleep apnea. November 2020 private medical records for a sleep study show he was diagnosed with obstructive sleep apnea, snoring, and chronic fatigue. December 2020 and January 2021 VA medical records notes that the Veteran has moderate obstructive sleep apnea. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner is unable to opine without resorting to speculation, he or she should provide a thorough rationale as to why that conclusion was ultimately reached. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.