Citation Nr: 1310217 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-20 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea and hypopnea syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and M.P. ATTORNEY FOR THE BOARD E. Woodard Deutsch, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned in June 2009. A transcript of this hearing has been associated with the Veteran's claims file. The Board subsequently remanded the case for additional development in November 2009 and February 2012. That development has been completed and the case is once again before the Board. In its prior Remands, the Board referred the following issues to the agency of original jurisdiction (AOJ): (1) entitlement to service connection for gastroesophageal reflux disease; (2) entitlement to service connection for proteinuria; (3) entitlement to service connection for diverticulitis; (4) entitlement to service connection for plantar fasciitis; (5) entitlement to service connection for an acquired psychiatric disorder; (6) entitlement to an increased rating for bilateral hearing loss; and (7) entitlement to an increased rating for hypertension. See Veteran's September 2006 Notice of Disagreement and July 2007 statement. As those issues have not yet been adjudicated in the first instance, they are once again referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2012). FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea did not manifest in service or for many years thereafter; nor is it related to his service-connected coronary artery disease with residuals of myocardial infarction, Type II diabetes mellitus, hypertension, or status post-partial thyroidectomy for nontoxic goiter, or to any other aspect of his active service. 2. The Veteran has not been diagnosed with any other sleep disorders during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for a sleep disorder, to include obstructive sleep apnea and hypopnea syndrome, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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) (2012). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In this case, VCAA notice was provided through letters issued in February 2006 and February 2010. The first letter specifically advised the Veteran of the evidence needed to substantiate his claim for service connection for a sleep disorder as secondary to his service-connected disabilities. Although that letter did not address the evidentiary requirements for establishing service connection on a direct basis, such notice was provided through the second letter, which was issued pursuant to the Board's November 2009 Remand. Significantly, both the February 2006 and February 2010 letters apprised the Veteran of his responsibilities, and those of VA, in obtaining relevant evidence. The February 2010 letter also described in detail how VA assigns a disability rating and an effective date following the grant of service connection. Therefore, that second letter satisfied the heightened VCAA notice requirements set forth in Dingess, even though such criteria have now been rendered moot by the Board's denial of the Veteran's service-connection claim. The Board acknowledges that the second VCAA notice letter was mailed to the Veteran after the initial unfavorable decision on his claim. Nevertheless, the Board finds that any prejudice arising from that late VCAA notice has been effectively cured by the subsequent readjudication of the claim in the April 2011 and October 2012 Supplemental Statements of the Case (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In those SSOCs, the AOJ collectively considered all of the pertinent evidence of record, including the clinical findings and lay argument that were elicited during each of the Board's Remands. Accordingly, the Board finds that the delay in VCAA notice has neither deprived the Veteran of effective participation in the processing of his service-connection claim nor affected the essential fairness of the decision. As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). With respect to the duty to assist, the AOJ has made exhaustive efforts to obtain the Veteran's complete service treatment records (STRs). Pursuant to the Board's latest remand, the AOJ has requested that the National Personnel Records Center (NPRC) obtain copies of all outstanding STRs, to specifically include treatment and examiantion reports for period from February 1964 to May 1978, as well as subsequent records of treatment for pulmonary tuberculosis at the Portsmouth, Virginia, Naval Hospital from 1978 to 1980. In response to the AOJ's request, the NPRC has produced copies of service records showing outpatient treatment for obesity and pulmonary ailments from April 1980 to November 1980, and inpatient surgery to remove a left thyroid mass in October 1981. However, the NPRC has indicated that no additional STRs are available. The Veteran has been duly informed of the status of the AOJ's records requests, but has not provided additional information that would enable VA to obtain or reconstruct any of his missing STRs. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not a one-way street.) Accordingly, further efforts to obtain such STRs would be futile and are therefore unwarranted. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (stating that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim); see also Hayre v. West, 188 F.3d 1327, 1331-1332 (Fed. Cir. 1999) (finding that VA's efforts to obtain Federal records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). Likewise unwarranted are any further efforts to obtain outstanding post-service treatment records. The AOJ previously attempted to obtain such records in accordance with the Board's February 2012 Remand. Specifically, the AOJ contacted the Veteran and requested that he authorize the release of records from two private clinicians who had treated him for sleep apnea in the 1990s and 2000s. However, the Veteran declined to complete the appropriate authorization forms. He also did not furnish any other information that would enable VA to obtain his private clinicians' records. Accordingly, the Board finds that the Veteran is responsible for the absence of those records from his claims file. See Wood, 1 Vet App. at 193. Significantly, the Veteran has not contended, and the record has not otherwise shown, that any additional service or post-service records remain outstanding that are necessary to decide his sleep disorder claim. Accordingly, the Board finds that further records development is unwarranted. Nevertheless, the Board recognizes that where, as here, STRs remain missing, VA has a heightened duty to assist the Veteran. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). This includes obtaining medical examinations and opinions to the extent necessary to decide the issue on appeal. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, VA has met its heightened duty to assist the Veteran by affording him examinations in March 2006, August 2008, and June 2010. VA also has obtained a July 2008 private medical opinion and has elicited a March 2011 Addendum opinion and an April 2012 medical opinion through the disability benefits questionnaire (DBQ) process. As detailed below, the VA and private examiners' findings dated in March 2006, July 2008, August 2008, June 2010, and March 2011 have all been inadequate for rating purposes. However, in accordance with the Board's latest remand, those inadequacies have been remedied by the April 2012 VA DBQ medical opinion. Despite expressing dissatisfaction with the conclusions reached therein, the Veteran has not alleged that this April 2012 opinion is insufficient to adjudicate his claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The record also does not suggest that this is the case. Accordingly, the Board considers it unnecessary to obtain an additional examination or opinion in support of that claim. The Board also considers it unnecessary to otherwise delay adjudication as its latest Remand has met with substantial compliance by the AOJ. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed above, the AOJ has conducted appropriate efforts to obtain the Veteran's service and post-service treatment records and has obtained a VA medical opinion that is sufficient to rate his service-connection claim. Moreover, in furnishing the requested medical opinion, the April 2012 VA DBQ examiner has expressly heeded the Board's Remand directives to conduct a thorough records review, render findings responsive to both direct and secondary theories of service connection, provide a detailed rationale in support of such findings, and accept as true the Veteran's statements, and those of his son and fellow service members, regarding his in-service and post-service history of sleep impairment; shortness of breath, particularly when asleep; snoring; and exhaustion and fatigue during waking hours. As such, the Board is satisfied that the April 2012 examiner has adequately considered the Veteran's lay assertions and, thus, achieved substantial, if not total, compliance with the terms of its latest Remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have "substantial" compliance, even if not "exact," "total" or "complete" compliance, per se). In further compliance with the Board's Remand, the Veteran's claim has been readjudicated in an October 2012 SSOC. In that readjudication, the AOJ has expressly addressed the findings of the April 2012 VA DBQ examiner. Conversely, the AOJ has not commented on the additional STRs obtained through the NPRC. Notwithstanding that omission, "[t]here is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'" Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). Courts presume that, "'in the absence of clear evidence to the contrary,'" public officers have "'properly discharged their official duties,'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). Therefore, absent any showing to the contrary, the Board presumes the AOJ has met its obligation to consider all evidence added to the record since the previous adjudication of the Veteran's claim. See 38 C.F.R. § 19.31 (2012). Significantly, neither the Veteran nor his representative has alleged or shown that this particular duty has not been met. Thus, the presumption of regularity has not been rebutted and the Board concludes that there has been substantial compliance with its prior Remand directives, including its instruction to readjudicate the Veteran's claim in the October 2012 SSOC. See Stegall, 11 Vet. App. at 271. As a final matter regarding the duty to assist, the Board observes that the Veteran has had the opportunity to testify in support of his claim during the aforementioned videoconference hearing. 38 C.F.R. § 20.700(a) (2012). The transcript of that proceeding reflects that the undersigned set forth the issue on appeal at the beginning of the hearing. The undersigned then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that the presiding Board Member committed prejudicial error, either by failing to fully explain the issue or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied in this case and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Service Connection for a Sleep Disorder The Veteran, in written statements and testimony before the Board and DRO, contends that he suffers from obstructive sleep apnea that had its onset in service. He alternatively asserts that this disorder arose as a result of his service-connected coronary artery disease, hypertension, Type II diabetes mellitus, and thyroidectomy residuals. In light of the Veteran's allegations, the Board will evaluate his service-connection claim under direct as well as secondary theories of entitlement. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process). At the outset of this discussion, the Board again acknowledges that a portion of the Veteran's STRs remain outstanding. Pursuant to the February 2012 Remand, the AOJ attempted to locate these service records but was unsuccessful. See Hayre, 188 F.3d at 1331-1332. As such, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas, 3 Vet. App. at 548; O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Significantly, however, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, the Board's obligation to carefully address and weigh all potentially favorable evidence does not lower the overall legal standard for proving a claim for service connection. See Russo v. Brown, 9 Vet. App. 46 (1996). Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted on a presumptive basis for certain chronic disabilities that manifest to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). However, the Veteran's obstructive sleep apnea is not included among the chronic disabilities listed under 38 C.F.R. § 3.309(a). Nevertheless, the Veteran may still qualify for service connection if all of the evidence, including that pertinent to service, reveals that he has a current disability that was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Veteran may also qualify for service connection for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In such instance, service connection shall be granted as secondary to the disability for which VA benefits were initially established. Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran may also obtain compensation for the aggravation of a nonservice-connected condition by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The United States Court of Appeals for Veterans Claims (Court) has promulgated separate tests for direct and secondary service connection. To establish service connection on a direct basis, there generally must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). To prevail under a secondary theory of service connection, there must be probative evidence, generally medical in nature, which establishes (1) current disability; (2) service-connected disability; and (3) a connection between the two. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the Veteran has met the threshold requirements of Hickson and Wallin by showing that he has a current diagnosis of obstructive sleep apnea. Indeed, as discussed in further detail, below, such a diagnosis has been expressly noted in the examination reports and medical opinions rendered in March 2006, July 2008, August 2008, June 2010, and March 2011. Conversely, the Board recognizes that the most recent VA medical opinion, obtained in April 2012, refers to the Veteran's "claimed" sleep apnea, thereby suggesting that his symptoms no longer comport with an actual diagnosis. Nevertheless, the prior clinical findings of obstructive sleep apnea, amassed during the pendency of the appeal, constitute sufficient evidence of a current disability for VA purposes. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Conversely, there have been no competent findings of hypopnea syndrome or other current sleep disorders. Accordingly, the Board will confine its analysis to whether service connection is warranted for obstructive sleep apnea under either the Hickson or Wallin test. Turning to the second prong of Hickson, the Board observes that the Veteran's STRs reflect treatment for pulmonary tuberculosis from 1978 to 1980. Those records are also replete with complaints and clinical findings of sleep impairment, shortness of breath, chronic coughing, chest pain and pressure, and obesity. Additionally, the Veteran has attested to severe problems falling asleep both during and after service. He also has reported a history of in-service and post-service snoring and exhaustion during his waking hours. See DRO Hearing Tr. at 1-2, 4; Board Hearing Tr. at 3-5. Moreover, his friend and fellow service member has stated that not only did the Veteran snore loudly and exhibit fatigue in service, he also had a tendency to stop breathing whenever he entered a deep sleep. See July 2008 Statement of T.P.F. While a lay person, the Veteran is competent to testify to a history of in-service and post-service sleep problems and respiratory symptoms, which fall within the realm of his experience. 38 C.F.R. § 3.159(a)(2) (2012); Barr, 21 Vet. App. at 309. Similarly, his fellow service member is competent to describe related symptoms that he personally observed in the Veteran. Moreover, both parties' accounts are presumed credible in the absence of countervailing evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Based on the foregoing, the Board finds that the Veteran has submitted probative evidence of an in-service disease or injury in accordance with the second element of Hickson. See Hickson, 12 Vet. App. at 253. He also has met the second element of Wallin by virtue of his prior awards of service connection for coronary artery disease, hypertension, Type II diabetes mellitus, and thyroidectomy residuals, each of which he now claims is related to his sleep apnea. See Wallin, 11 Vet. App. at 512. Accordingly, the remaining questions before the Board are whether the Veteran's obstructive sleep apnea was caused or aggravated in service, including as a direct result of the sleep difficulties, pulmonary problems, and obesity noted in his STRs, and whether that current sleep disorder is etiologically related to one or more of his service-connected disabilities. See Hickson and Wallins, supra. Prior attempts to resolve these questions have met with insufficient medical opinions. The first such opinion was obtained in March 2006. At that time, a VA physician determined that, while the Veteran met the diagnostic criteria for obstructive sleep apnea based on the results of prior sleep studies, this disorder had been neither caused nor aggravated by his coronary artery disease or hypertension. Significantly, however, the March 2006 examiner did not address whether there was any relationship between the Veteran's sleep apnea and his other service-connected disabilities, specifically, his Type II diabetes and thyroidectomy residuals. The March 2006 examiner also declined to opine as to whether a direct nexus existed between the Veteran's sleep apnea and his active service. Moreover, by focusing exclusively on the clinical findings then of record and on the "objective medical literature," the March 2006 examiner declined to account for the lay evidence supporting the Veteran's claim. The record thereafter shows that, in August 2008, the same VA examiner offered another opinion that was only slightly more favorable, and no more probative, with respect to the Veteran's claim. This time, the examiner noted that, during the Veteran's active duty, he had been treated for sleep problems, respiratory ailments, and obesity, and had also undergone surgery for a thyroid condition. The examiner further noted that the Veteran's in-service snoring, fatigue, and related symptoms had been witnessed by his fellow service member. However, the examiner stated that she could not determine whether a nexus existed between any of those documented in-service problems and the Veteran's current sleep apnea without resorting to speculation. A similarly inconclusive opinion was rendered one month earlier by a private physician, who posited that the Veteran's sleep apnea "could have" occurred in service, but then declined to offer a more conclusive opinion regarding whether a nexus existed. After taking note of the inherently speculative nature of the above VA and private opinions, the Board determined that neither was sufficient to assess the merits of the Veteran's claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (observing that evidence which is speculative, general or inconclusive in nature cannot support a claim). Accordingly, the Board remanded the appeal for a new VA medical examiantion and opinion. The requested VA examination took place in June 2010 and yielded an etiological opinion that was resoundingly negative with respect to the Veteran's service-connection claim. Significantly, however, the only explanation provided for that unfavorable opinion was that the Veteran had not sought in-service treatment for sleep apnea symptoms and had denied any history of such symptoms on separation. In making this cursory observation, the June 2010 VA examiner declined to address the Veteran's documented in-service treatment for pulmonary tuberculosis and his contemporaneous complaints of sleep problems, chest pain and pressure, shortness of breath, and chronic coughing. Moreover, as with her predecessors, the June 2010 VA examiner made no mention of the competent lay evidence of record. Such evidence, at the time that report was prepared, included not only the Veteran's own written statements and those of his fellow service member, but also testimony elicited from the Veteran and his son regarding continuity of symptomatology. See DRO Hearing Tr. at 1-2, 4; Board Hearing Tr. at 3-5. The above lay evidence was similarly ignored in a March 2011 Addendum opinion, which confined its analysis to whether Veteran's sleep apnea had been caused or aggravated by one or more of his service-connected disabilities. In opining against this secondary theory of entitlement, the March 2011 examiner relied on data contained in the service and post-service treatment records, the prior VA examination reports, and the pertinent medical literature, but did not consider the Veteran's own assertions or those of the other lay witnesses. The evidentiary deficiencies inherent in the June 2010 VA examiantion report and the March 2011 Addendum led the Board to conclude that neither opinion was adequate for rating purposes. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). The Board then reasoned that the probative value of the March 2011 Addendum opinion was further reduced by its lack of supporting analysis. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Accordingly, the Board remanded the Veteran's claim a second time for a follow-up medical opinion. Although signed by the same VA physician who completed the March 2011 Addendum, the April 2012 DBQ examination report marked a departure, in terms of scope and analysis, from any of the earlier medical opinions. Indeed, unlike those prior opinions, the April 2012 DBQ examination report took into account all of the pertinent clinical and lay evidence. It also considered both the direct and secondary theories of service-connection put forth by the Veteran and his representative. However, while singularly thorough in its review of the evidence and argument underlying the Veteran's claim, the April 2012 DBQ report ultimately concurred with the earlier opinions that weighed against that claim. Specifically, the author of the DBQ report concluded that, while the Veteran no longer met the criteria for obstructive sleep apnea, such a diagnosis, even if warranted, was less likely than not service-related. In this regard, the April 2012 VA DBQ examiner acknowledged the Veteran's complaints of active-duty sleep disturbances, snoring, and daytime fatigue, but concluded that these symptoms had not risen to the level of a chronic in-service disability. As support for that finding, the April 2012 examiner noted that the Veteran's sleep apnea symptoms had been markedly absent during his February 1984 separation examination and had not resurfaced until approximately 14 years later when his initial diagnosis had been made. The examiner then opined that the Veteran's in-service and post-service pulmonary problems, which were tied to his decades-long smoking habit, bore no etiological connection to his obstructive sleep apnea, based on any evidence in the claims file or the pertinent medical literature. The examiner further determined that, while the Veteran had been treated for obesity in service, this condition was a risk factor, but not an underlying cause, of obstructive sleep apnea. In this regard, the examiner noted that, if a causal relationship had existed between those two conditions, 60 percent of all American adults would be diagnosed with sleep apnea as secondary to morbid obesity. Continuing in a similar vein, the examiner reasoned that, for the Veteran's in-service snoring to have caused or aggravated his sleep apnea would mean that approximately half of all adult American males, who were predisposed to snoring, would also suffer from sleep apnea, rather than the far lower percentage that were actually affected. Turning to the question of secondary service connection, the April 2012 VA DBQ examiner observed that there was nothing in the pertinent medical literature that suggested a correlation between the Veteran's service-connected coronary artery disease, hypertension, diabetes, and thyroidectomy residuals and his sleep apnea. The examiner also determined that these service-connected conditions did not aggravate the Veteran's sleep disorder. To the contrary, the examiner noted that, while untreated sleep apnea had been clinically found to aggravate coronary artery disease, hypertension, and other cardiovascular problems, the reverse had not been shown. The examiner further noted that neither Type II diabetes nor residuals of a thyroidectomy - including one which, as in the Veteran's case, had been accompanied by thyroid replacement surgery - was known to have any etiological or pathophysiological bearing on obstructive sleep apnea. Significantly, the Veteran has not submitted any medical opinions contradicting the April 2012 VA DBQ examination findings. Nor has he produced any other evidence in support of his sleep disorder claim or provided information that would enable VA to elicit such evidence on his behalf. Consequently, the Board finds that, to the extent such favorable evidence exists but has not been obtained, the responsibility lies with the Veteran. See Wood, 1 Vet. App. at 193. In the absence of additional medical opinion evidence, the Board concludes that the findings of the April 2012 VA DBQ examiner are the most probative in this appeal. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (noting that, in its assessment of medical opinion evidence, the Board can favor some evidence over other evidence so long as it adequately explains its reasons for doing so). In reaching this conclusion, the Board has applied the criteria for weighing medical opinion evidence promulgated by the Court in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Such criteria include whether the opining clinician 1) was fully informed of the pertinent factual premises (i.e., history) of the case; 2) provided a fully articulated opinion; and 3) supported that opinion with analysis. Id. (noting that while the Federal Rules of Evidence are not binding on the Veterans Court, nor on the Board, the rules on expert witness testimony provide useful guidance in assessing the probative weight of medical opinions). Nieves-Rodriguez, 22 Vet. App. at 302. With regard to the first prong of this three-part inquiry, the Board observes, at the outset, that the author of the April 2012 VA DBQ medical opinion demonstrated his familiarity with the pertinent facts of the case through his review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes that claims file review is not a strict prerequisite for medical opinions, even those authored by VA examiners. See Nieves-Rodriguez, 22 Vet. App. at 301. Nevertheless, the probative value assigned to a medical opinion may be reduced if the clinician fails to acknowledge relevant information, particularly that which is contrary to the opinion. Conversely, greater reliance may be placed on an opinion rendered by an examiner who fully accounts for all salient evidence, both clinical and lay. Indeed, it is the responsibility of each VA examiner to duly consider all such competent evidence of record, and to reserve the Board's right to determine the overall weight of that evidence in the final adjudication of the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). In this case, the April 2012 VA DBQ examiner effectively discharged his responsibility to consider all competent evidence of record by looking beyond the contents of the Veteran's in-service and post-service treatment records. Indeed, unlike his predecessors, the April 2012 DBA examiner did not base his opinion solely on the Veteran's clinically documented sleep disturbances, tuberculosis and related pulmonary problems, shortness of breath, obesity, and thyroid dysfunction. Instead, the April 2012 examiner also accounted for the Veteran's own complaints of progressively worsening sleep apnea. Through this display of familiarity with the subjective evidence supporting the Veteran's claim, the April 2012 examiner effectively distinguished his report from the prior medical opinions, which, for the reasons previously noted, were deemed inadequate for rating purposes. See Barr, 21 Vet. App. at 312. Moreover, the Board considers it significant that the findings of the April 2012 VA DBQ examiner constitute the most recent evidence of record. Accordingly, the Board presumes that examiner took into account the most up-to-date contents in the claims file, which had been forwarded to him in his entirety. This includes the statements from the Veteran, his son, and his fellow service member, which were not of record when the initial March 2006 and August 2008 VA examinations were conducted and were overlooked in the June 2010 VA examination report and the March 2011 Addendum opinion. See Marsh v. Nicholson, 19 Vet. App. at 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). The April 2012 VA DBQ examiner's thorough review of those statements, and the other pertinent evidence of record, adds to the probative value of his report, relative to the other medical opinions of record. The comparative weight of the April 2012 DBQ examination report is further highlighted by the remaining prongs of the Nieves-Rodriguez test. See Nieves-Rodriguez, 22 Vet. App at 305. In applying these criteria, the Board recognizes that, with the exception of the inherently speculative findings of the July 2008 and August 2008 examiners, all of medical opinions of record weigh definitively against the Veteran's claim. Nevertheless, as discussed above, only the April 2012 VA DBQ examiner's report fully accounts for the favorable lay evidence. As such, only that opinion can be considered factually accurate, fully articulated, and sound, in accordance with the second element of Nieves-Rodriguez, supra. Id. Similarly, only that opinion can be considered compliant with the third Nieves-Rodriguez element. Indeed, this final element has been met by virtue of the April 2012 VA DBQ examiner's robust supporting rationale, which not only reconciled the salient clinical and lay evidence of record but also drew from medical literature regarding known risk factors and causes of sleep apnea. Id.; see also Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998) (noting that the submission of pertinent medical literature, in combination with a medical nexus opinion, is considered probative evidence in support of claim for service connection). Having thus articulated its reasons for relying on the April 2012 VA DBQ examiner's report, the Board finds that this report tilts the preponderance of the evidence against the Veteran's claim. As discussed above, this report ruled out a direct link between Veteran's active service and his currently diagnosed sleep disorder. Moreover, the Board considers it significant that the prior VA and private medical opinions, while less probative than that of the April 2012 VA DBQ examiner, do not contradict this clinician's findings with respect to the third Hickson element. In fact, there are no medical opinions of record that denote a positive nexus between any of the Veteran's documented in-service pathology and his current sleep disorder. The Board recognizes that the Veteran himself is of the opinion that such a relationship exists. However, while competent to attest to a history of in-service and post-service sleep problems, shortness of breath, obesity, and related symptoms, which are capable of lay observation, he has not shown that he has the expertise to comment on complex medical issues, such as the nature and etiology of his obstructive sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.). As such, the relationship, if any, between that current disability and the Veteran's active service is a matter that requires medical expertise to resolve. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that "[a]lthough the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with"). Moreover, the Board observes that the need for an expert medical opinion is particularly great where the underlying disability picture is inherently complex. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Such is the case here. Indeed, as noted in the Board's prior Remand, the Veteran's claims file is replete with complaints of insomnia, fatigue, excessive snoring, and related breathing problems, and objective findings of sleep apnea, smoking-related pulmonary disorders, and obesity, in addition to the disabilities for which service connection was previously established. In view of that complicated in-service and post-service history, the Board finds that the etiology of the Veteran's sleep disorder can only be resolved by a clinical expert, such as the author of the April 2012 DBQ medical opinion. This clinician's demonstrated familiarity with the underlying causes and risk factors of obstructive sleep apnea adds to the probative weight of his opinion, relative to the less informed views of the Veteran. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Moreover, the Board considers it significant that, despite disagreeing with the April 2012 VA DBQ examiner, the Veteran has not alleged that this clinician was unqualified to render etiological findings in connection with this appeal. Nor has the Veteran submitted any evidence refuting those findings or showing, in the alternative, that he himself is qualified to ascribe his current sleep disorder to an injury or disease in service. Therefore, the Board finds that the Veteran's own views in this regard are outweighed by the April 2012 negative nexus opinion. Next, the Board acknowledges that, under prior law, the nexus requirement could be satisfied through a continuity of symptomatology, which could be established under certain circumstances through lay evidence. See 38 C.F.R. § 3.303(b) (2012). However, the United States Court of Appeals for the Federal Circuit has since ruled that this is no longer the case with respect to disabilities, such as sleep apnea, which fall outside the ambit of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Accordingly, even assuming, without conceding, that a continuity of sleep apnea symptoms had been shown in this case, such a showing would no longer serve as a sufficient substitute for the third and final Hickson element. See Hickson, 12 Vet. App. at 253. In light of the foregoing, the Board finds that, while the Veteran has met the first two requirements for direct service connection, he has not satisfied the final element (nexus). See Hickson, 12 Vet. App. at 253. Accordingly, the Board concludes that service connection is not warranted on a direct basis. Nor is service connection warranted on a secondary basis. To the contrary, the April 2012 VA DBQ examiner - whose report, for the above reasons, is deemed probative -not only opined as to the lack of a direct in-service nexus but also ruled out any secondary theory of entitlement. Moreover, just as the Veteran himself has not displayed the requisite expertise to directly relate his current sleep problems to service, he also has not shown that he is competent to attribute those problems to one or more of his service-connected disabilities. Nor is the Board competent to arrive at such an unsubstantiated medical conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, while highly sympathetic to this long-serving Veteran's claim, the Board lacks the discretion to find that he has met the third and final requirement for secondary service connection under Wallin. See Wallin, 11 Vet. App. at 512. In summary, the preponderance of the evidence is against the claim of service connection for a sleep disorder under any of the theories presented by the Veteran or otherwise suggested by the record. Thus, while the Board has carefully considered the benefit of the doubt rule, that rule is not for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). The benefit sought on appeal is accordingly denied. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for a sleep disorder, to include obstructive sleep apnea and hypopnea syndrome, is denied. ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs