Citation Nr: 1120849 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 06-28 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for hypertension. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for heart disease, claimed as secondary to hypertension. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sleep apnea. 4. Entitlement to service connection for an upper gastrointestinal disorder, claimed as hernia. 5. Entitlement to service connection for a toenail disorder, claimed as foot fungus. 6. Entitlement to service connection for claimed asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from December 1973 to June 1977, from January 1991 to May 1991, and from July 1996 to February 1997. He also had service in the National Guard and Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified in a hearing before the RO's Decision Review Officer (DRO) in June 2008. He also testified before the undersigned Veterans Law Judge in a hearing at the RO in March 2011. A transcript of each hearing has been associated with the claims file. In a February 2011 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD). The Veteran did not file a second Notice of Disagreement (NOD) disagreeing with either the rating or effective date assigned. Therefore, those issues are not presently before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability). At the Board hearing, the Veteran submitted additional evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. §§ 20.800; 20.1304. At his Board hearing, the Veteran raised the issues of service connection for (1) ventral hernia and (2) an undiagnosed illness, to include radiation exposure, and (3) an increased rating for PTSD. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The petitions to reopen the claims of service connection for (1) hypertension; (2) heart disease; and (3) sleep apnea, and the original claims of service connection for (4) hiatal hernia and (5) claimed foot fungus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran was not exposed to asbestos during service, and the weight of the competent evidence demonstrates that the Veteran is not currently diagnosed with a disorder shown to be related to asbestos exposure. CONCLUSION OF LAW The Veteran does not have a current respiratory disorder due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in January 2005 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. He was not specifically informed in connection with this claim of how VA determines disability ratings and effective dates. However, a May 2007 VCAA notice letter, pertinent to unrelated claims, provided this information. Moreover, the instant decision denies service connection, so no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a March 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available pertinent, outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence pertinent to the claim of service connection for asbestos. The Board acknowledges that the Veteran's remaining claims on appeal are remanded below for further evidentiary development, to include obtaining missing service records. The central issue in the claim decided below, however, involves whether the Veteran was exposed to asbestos during his initial period of active duty from December 1973 to June 1977. The claims file currently contains all service records for this period of active duty. The Veteran does not contend, and the record on appeal does not suggest, that he had asbestos exposure during a later period of active duty, inactive duty for training, or active duty for training. Accordingly, the missing service records are not pertinent to the claim of service connection for asbestos exposure and, as such, remanding the claim would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran has not been provided a VA examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence of record, as indicated, shows that the Veteran was less likely than not exposed to asbestos during service. Accordingly, there is no evidence establishing that an event, injury, or disease occurred in service. Therefore, a VA examination is not necessary. See id. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis The Veteran contends that service connection is warranted for asbestos exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. Active Duty for Training (ACDUTRA) is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22). Service connection may be granted for injury or disease incurred while on ACDUTRA. 38 U.S.C.A. § 101(24). Inactive Duty for Training (INACDUTRA), by comparison, is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. 38 U.S.C.A. § 101(24). The presumption of sound condition does not apply if an entrance examination was not performed prior to a period of ACDUTRA or INACDUTRA. "In the absence of such an [entrance] examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Moreover, the presumption of aggravation is not applicable to a claimant seeking service connection "based on a period of activity duty for training" or inactive duty for training. Service connection will only be warranted if the evidence shows "both that a worsening of the condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training." Smith v. Shinseki, 24 Vet. App. 40 (2010). "[T]he term 'aggravated' as it is used in section 101(24)(B) means that in order for a claimant to have active service that qualifies him to be a 'veteran,' the evidence must establish that during his period of active duty for training, he experienced a permanent increase in disability beyond the natural progress of that disease or injury. The claimant, rather than VA, bears the burden of proof in establishing both that (1) "the preexisting disability worsened in service" and (2) "that such worsening was beyond the natural progression of the disease." The presumption of aggravation does not apply, but "the benefit of the doubt standard applies to the question of veteran status." Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Also, certain chronic diseases, including bronchiectasis and sarcoidosis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection on a presumptive basis is also not warranted for periods of activity duty for training and inactive duty for training. Smith v. Shinseki, 24 Vet. App. 40 (2010). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the present case, the Veteran wrote in an August 2006 testimonial statement that he was exposed to asbestos while a Marine from 1973 to 1979 when he went on several cruises with Navy ships. The Board points out that the Veteran has not identified a current medical disability that he feels is due to his claimed asbestos exposure during service. Exposure to asbestos, in and of itself, is not considered a disability for VA purposes. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H (29)(c). In his August 2006 testimonial statement he wrote that he complained of shortness of breath during several physical examinations in service. Thus, the Board finds that the scope of the claim reasonably encompasses a claim of service connection for a respiratory (pulmonary) disorder as due to asbestos exposure. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88 (2009). (At his March 2011 Board hearing, he also referred to radiation exposure when discussing his asbestos claim. In light of the distinct factual predicates of asbestos and radiation claims, however, the Board finds that the present claim of service connection for asbestos exposure does not reasonably encompass a claim of service connection for residuals of claimed radiation exposure. Rather, a claim of service connection for an undiagnosed illness, to include on the basis of radiation exposure during Gulf War service, has been referred to the RO, as noted in the Introduction above. See38 C.F.R. §§ 3.307, 3.311, 3.317; Clemons, 23 Vet. App. 1; Brokowski, 23 Vet. App. at 86-88; see also, e.g., Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (holding that "VA has the power to bifurcate a single claim and adjudicate different theories [of entitlement] separately.")) In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). The Board notes that paragraph 7.21(b) of the Manual does not constitute a presumption of asbestos exposure; rather, it is a guideline for adjudication. See VAOPGCPREC 04-2000 (April 13, 2000). According to the administrative protocols, VA must address two sequential questions. First, whether service records demonstrate asbestos exposure during active duty. If so, the second question involves whether there is a relationship between that exposure and the claimed disease. VA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005) (M-21). With regard to the initial determination, the M21-1 defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation. Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a). Some of the major occupations involving asbestos exposure include mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products, such as clutch facings and brake linings; and manufacture and installation of products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties were used extensively in military ship construction. Many of these people have only recently come to medical attention because of the potentially long latent period between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(g). There is no presumption that a veteran was exposed to asbestos in service by reason of having been on a ship. Dymant v. West, 13 Vet. App. 141 (1999); aff'd, Dymant v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (April 13, 2000). If it is determined that a Veteran was exposed to asbestos during service, the next question concerns whether there is a relationship between that exposure and the claimed disease. According to the M21-1, inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c). Disease-causing exposure to asbestos may be brief, and/or indirect. Id. Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. Id. The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d). A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion end-respiratory rales over the lower lobes; compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(e). In the present case, the Board finds that the weight of the more probative evidence of record is against the Veteran's claim. First, the evidence establishes that it is less likely than not that the Veteran was exposed to asbestos during service. He contends that he was exposed to asbestos due to being on Navy ships, but service on a Navy ship alone does not establish that he was exposed to asbestos. See Dymant, 13 Vet. App. 141. In any event, the Board need not accept a non-combat veteran's lay statements asserting that an event (as opposed to medical symptoms) actually occurred, even though there is no "affirmative documentary evidence provid[ing] otherwise." Rather, all the evidence of record, including the absence of documentation in the military records, must be weighed in determining whether an event actually occurred. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010); compare Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that it was impermissible for the Board to find a veteran's lay statements regarding his medical symptoms not credible merely because there was no "confirmatory medical evidence"). With this in mind, the Board finds that the Veteran's official service department records, including a DD Form 214 are consistent with his assertions of sea service. His military occupational specialty (MOS), however, was 0311 Rifleman, which is not consistent with asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). For sake of completeness, the Board also acknowledges the Veteran's Board hearing testimony where he indicated that he had asbestos exposure from SCUD missiles during the Gulf War. There is, however, no indication of asbestos exposure related to SCUD missiles. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f). Also weighing against the claim, the STR shows no indication of a respiratory disorder. Clinical evaluation of the lungs was "normal" in May 1977 and November 1980. Also significant, at his March 1991 discharge examination, the Veteran endorsed shortness of breath, but clinical evaluation of the lungs was again "normal." The STR also includes National Guard and Reserve records. An October 1982 National Guard enlistment examination shows that the Veteran denied all pertinent history. Also, at a February 1987 Reserve physical examination, it is noted that there was no history of disease since last examination (except untreated hypertension and weight). Based on this record, the Board finds that it is less likely as not that the Veteran was exposed to asbestos during his active duty service. Also, there is no indication that a respiratory at least as likely as not preexisted a period of ADT and then underwent a permanent increase in disability beyond the natural progress of the disease caused by such period of service. See Smith, 24 Vet. App. 40; Donnellan, 24 Vet. App. 167. At his March 2011 Board hearing, the Veteran indicated that he had symptoms that continued after service. The Board finds that the more credible evidence of record weighs against reliability of his hearing testimony. See Dalton, 21 Vet. App. at 36; Caluza, 7 Vet. App. at 511. In particular, the post-service medical evidence shows that the Veteran underwent a post-service VA examination in January 1980. At that time, a chest X-ray showed clear lungs and pleurae. Similarly, he was admitted for (unrelated) treatment at a private hospital in April 1980, but it was noted that he had no adult diseases and no medical problems. At a later (unrelated) private admission in November 1991, the Veteran affirmatively denied a history of prior lung disease. As this evidence directly contradicts his assertions that he had continuous symptoms after his period of active service ending in June 1977, his assertions are not probative. See Dalton, 21 Vet. App. at 36; Caluza, 7 Vet. App. at 511. The remaining objective evidence shows no indication of a respiratory disorder (or other disability) related to asbestos exposure. In particular, he underwent a private physical examination in July 1992, in connection with his employment. At that time he had no respiratory complaints. In fact, he reported that his only medical problem was hypertension. Physical examination was "[n]ormal." A private chest X-ray from February 1994 also showed findings of normal lungs unchanged since November 1991. Similarly, a chest X-ray at VA in March 1997 was "not significant." A May 1997 VA cardiovascular examination included a chest X-ray, which showed a 1 cm density in the left costophrenic angle, which was found to be either an artifact or an actual lung lesion, or a pleural lesion, but it was "uncertain." A repeat study was recommended. The Board finds important that a private chest X-ray several months later in December 1997 was "normal," and a subsequent September 1998 VA chest X-ray showed "[n]o change," with no acute infiltrates or acute processes, and no mass lesions. Several years later, in May 1999, the Veteran was treated for pneumonia. Also a private April 2000 chest X-ray showed bilateral pulmonary infiltrates. Then, at a private emergency room (ER) in July 2000, the Veteran complained of shortness of breath since 1991 with some mid-sternal soreness. After physical examination at the ER, the assessment was dyspnea, etiology uncertain. A private July 2000 chest X-ray showed no focal infiltrates. On follow-up in August 2000, a chest X-ray showed findings of normal lungs. Moreover, a private pulmonary function test (PFT) from August 2000 showed mild restrictive lung function "probably secondary to his obesity" and reversible air flow limitation leading to bronchial asthma. Then, the Veteran underwent a VA examination in March 2003 in connection with a separate claim of service connection (for sleep apnea, which is remanded below). The VA examiner performed a clinical evaluation, and then diagnosed chronic obstructive pulmonary disease (COPD). The VA examiner based this diagnosis on chest X-ray findings from February 2000, which showed mild pulmonary congestion with no active infiltrate. The VA examiner noted that a PFT had been ordered, and the results were pending. The Board points out that a PFT was performed shortly before the VA examination, but the results were not reported until later in March 2003 after the VA examination. The results were "within normal limits. A private chest X-ray from September 2003 showed findings of chronic interstitial pattern. A separate private chest X-ray from September 2003, by comparison, showed no pleural effusion or pulmonary infiltration seen. A private chest X-ray from September 2005 showed findings of right basilar infiltrate or atelectasis, but a July 2007 VA PFT revealed no evidence for obstructive airway disease; there was some moderate deterioration in the Veteran's vital capacity suggestive of a restrictive disorder most likely related to his underlying obesity. The Veteran also underwent pulmonary consultations at VA in October 2008, and after evaluation, the assessment was no specific pulmonary issues identified. A January 2009 VA chest X-ray, showed lungs without evidence of effusion, edema, or pneumothorax. The most recent evidence of record, a January 2011 VA chest X-ray showed findings of mild, stable pleuroparenchymal or scarring inferolaterally on the left with old granulomatous disease not excluded, but the lungs showed no evidence of infiltrate. The assessment was no evidence of significant acute cardiopulmonary disease. The post-service evidence shows, in summary, no chronic respiratory disability indicated as due to asbestos exposure or other incident of the Veteran's service. To the extent the January 2011 chest X-ray showed stable pleuroparenchymal or scarring inferolaterally on the left with old granulomatous disease, this assessment was equivocal. On clinical evaluation the same day in January 2011, the Veteran denied a history of shortness of breath. Also, a VA physician reviewed the chest X-ray results and noted no indication of a respiratory disorder. In any event, the Board above found that the Veteran less likely than not was exposed to asbestos during his active duty service. Otherwise, there is no diagnosis of interstitial pulmonary fibrosis; asbestosis; tumors; pleural effusions; pleural plaques; mesotheliomas of pleura and peritoneum; or any cancer. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b). Rather, private and VA findings were consistent with disease, including obesity, unrelated to the Veteran's service. The Veteran has offered his own opinion indicating that he has a current disorder due to asbestos exposure. As indicated, however, there is no credible or competent evidence of asbestos exposure during service. Moreover, the question of whether a current disorder may be related to asbestos exposure involves a medical issue involving an internal physical process, which extends beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316; Jandreau , 492 F.3d at 1376-77. For these reasons, the Board finds that the preponderance of the most probative evidence of record weighs against the claim of service connection for asbestos exposure. Accordingly, the claim is denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for asbestos exposure is denied. REMAND Upon review, the Board finds that further development is necessary on the petitions to reopen the claims of service connection for (1) hypertension; (2) heart disease; and (3)sleep apnea. Further development is also needed on the original claims of service connection for (4) hiatal hernia and (5) claimed foot fungus. With regard to the petitions to reopen, the Board finds that the further attempts must be made to attempt to obtain missing service treatment records. The claims file currently includes a DD Form 214 showing that the Veteran had active duty service from July 1996 to February 1997 at Fort Dix, New Jersey. In May 2007, the RO made a request for these records. A response states that the Veteran's service record was incomplete and all documents on file were mailed, but that the Veteran's period of service from July 1996 to February 1997 could not be verified from the record on file. A similar response was received in August 2006. The claims file, however, does not show that a request was made directly to the appropriate records custodian at Fort Dix, New Jersey. A Formal Finding of Unavailability was not issued consistent with 38 C.F.R. § 3.159(e)(1). The Board finds that the missing service records are necessary to decide the petitions to reopen the claims of service connection for (1) hypertension; (2) heart disease; and (3)sleep apnea. See 38 C.F.R. § 3.156(c). Accordingly, upon remand, the RO should undertake all necessary action to attempt to obtain the missing service records, to include contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center and Fort Dix. With regard to the claim of service connection for a skin condition, the Veteran's testimonial statements show that he has identified "foot fungus." The VA outpatient treatment records also reflect related complaints of fungal problems of the fingernails. The fingernails and toenails, however, are distinct parts of the body that can be expressed without recourse to complex medical terminology. Therefore, the scope the present claim does not reasonably encompass a claim of service connection for a skin condition of the fingernails. See Clemons, 23 Vet. App. 1 (2009); Brokowski, 23 Vet. App. at 86-88. Also, by way of history, the Board notes that claims file shows that a claim of service connection for dermatitis of the hands and feet was previously denied in April 2003. The current claim on appeal, by comparison, concerns "foot fungus." The medical evidence of record shows a diagnosis of onychomycosis, which is distinct from the treatment for dermatitis. Thus, the Board finds that the claim for "foot fungus" presents a distinct factual basis, and is properly adjudicated as an original claim of service connection. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (holding that claims based upon distinctly and properly diagnosed disease or injuries must be considered separate and distinct claims). Similarly, the RO has developed a claim of service connection for hiatal hernia. The post-service VA treatment records beginning in September 2005 also reflect treatment for a ventral hernia. The Veteran testified at his March 2011 Board hearing that he has had treatment at VA for two hernias: a hiatal hernia and a hernia in his stomach ("belly"). The Board finds that although both disorders are identified as "hernias," the evidence, including the Veteran's own assertions, shows that they involve distinct body parts and different symptoms that can be expressed without recourse to complex medical terminology. Thus, the claim on appeal does not reasonably encompass a claim of service connection for ventral hernia. (A claim of service connection for ventral hernia, however, has been reasonably raised, so it is referred to the AOJ for appropriate action, as noted in the Introduction above.) By comparison, the evidence reflects findings, such as in March 2003 at VA, of hiatal hernia with gastroesophageal reflux disease (GERD). Accordingly, the claim of service connection reasonably encompasses a claim of service connection for hiatal hernia with GERD. See Clemons, 23 Vet. App. 1; Brokowski, 23 Vet. App. at 86-88. (The Board also notes for sake of reference that the Veteran was granted service connection in February 2011 for irritable bowel syndrome due to service in the Southwest Asia theater of operations. That claim is not on appeal to the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability).) With regard to both service connection claims, the record on appeal contains (1) competent evidence of a current disability or continuous symptoms since service; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a period of active duty service. Since the record otherwise lacks sufficient competent evidence upon which the Board can make a decision, remand for a VA examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). In particular, with regard to the claimed foot fungus, the Veteran testified at his March 2011 Board hearing that he first noticed symptoms during his initial period of active duty service. Additionally, the Veteran's STR shows treatment in September 1974 for "jock rash," although no reference is made to the feet. The post-service medical evidence includes the results of a May 1997 VA cardiovascular examination, where a physical examination revealed mycotic toenails. A private August 2002 admission history and physical examination shows an assessment of onychomycosis. Most recently, it was noted at a consultation at VA in March 2009 that the Veteran had treatment for "reoccurring fungus" of the nails on the first and fourth right, and fifth left nails. The Board finds that the March 2009 characterization of the fungus as "reoccurring" indicates that the Veteran's recurrent symptoms may be associated with his service. Thus, a VA examination is necessary. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). To the extent the Veteran's claimed condition involves active and inactive stages, the examination should be conducted during the active stage. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Concerning the hiatal hernia, the Veteran testified at his Board hearing that he first had complaints of stomach problems during service in Desert Storm. The STR shows that the Veteran denied all pertinent complaints upon his discharge examination in March 1991. Yet, an April 1991 Southwest Asia demobilization questionnaire shows that he endorsed such complaints. The post-service evidence includes results of a private upper gastrointestinal series (UGI) from August 2000, which confirmed a hiatal hernia. In light of this record, the Board finds that a VA examination is necessary. See Waters, 601 F.3d at 1278; McLendon, 20 Vet. App. at 83. Accordingly, the issues are REMANDED for the following action: 1. The RO should send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all health care providers who may have additional records pertinent to the remanded claims. 2. After the Veteran has signed any necessary releases, the RO should make as many attempts as necessary to obtain all pertinent records identified by the Veteran, if not already associated with the claims file. The RO should also obtain all of the Veteran's outstanding VA treatment records since March 2011. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review. 3. The RO should contact the appropriate service department and/or records custodian(s), to include at the National Personnel Records Center and Fort Dix, with a request for copies of any outstanding service treatment records. If, after making as many attempts as are necessary to obtain any pertinent records, it is determined that the missing service records do not exist or that further efforts to obtain those records would be futile, the AMC/RO should issue a Formal Finding on the Unavailability of Records Memorandum consistent with 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. 4. After completing the above requested development, the RO should undertake any further development warranted by the record. Then, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of the claimed foot fungus. To the extent feasible, the examination should be scheduled during an active stage of the disease. The entire claims file, including a copy of this remand, must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner should provide a current diagnosis and specifically indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a toenail disorder that was incurred during a period of active duty service or is otherwise related to his active service. If the VA examiner determines that a toenail preexisted any period active duty (either from December 1973 to June 1977, from January 1991 to May 1991, or from July 1996 to February 1997), the examiner is asked to offer an opinion as to the likelihood that the disorder was permanently worsened beyond the natural progression of the disease or whether his symptoms were temporary or intermittent during that period of active duty service. In making these determinations, the examiner is asked to address a March 2009 VA treatment record characterizing the Veteran's disorder as "reoccurring." The examiner should also discuss the Veteran's assertions that he has had continuous symptoms since his initial period of active duty service from December 1973 to June 1977. The examiner should prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 5. Also after completing the requested development above, the RO should arrange for the Veteran to undergo an appropriate VA examination to determine the nature and likely etiology of the claimed hiatal hernia. The entire claims file, including a copy of this remand, must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and also undertake any indicated studies. Then, based on the record review and examination results, the examiner should provide a current diagnosis and specifically indicate whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that an upper gastrointestinal disorder, to include hiatal hernia, was incurred during a period of active duty service or is otherwise related to his active service. If the VA examiner determines that a disorder preexisted any period active duty (either from December 1973 to June 1977, from January 1991 to May 1991, or from July 1996 to February 1997), the examiner is asked to offer an opinion as to the likelihood that the disorder was permanently worsened beyond the natural progression of the disease or whether his symptoms were temporary or intermittent during that period of active duty service. In making these determination, the examiner is asked to address an April 1991 Southwest Asia demobilization questionnaire showing positive complaints. The examiner should also discuss the Veteran's assertions that he has had continuous symptoms since his service in Southwest Asia. The examiner should prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all opinions and conclusions reached. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 6. After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claims in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs