Citation Nr: 1326166 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 05-30 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for bilateral shoulder injuries, to include as secondary to a chronic back disorder. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. 3. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active service from February 1972 to December 1975, March 1979 to March 1981, and November 1981 to July 1992. The Veteran also had service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Fort Harrison, Montana. In his September 2005 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a Board hearing. He was scheduled for a hearing in May 2006, with notice provided in April 2006, but did not appear. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2012). This matter was previously before the Board in June 2009, June 2011, and November 2012 at which time it was remanded for additional development. Additionally, in November 2012, the Board granted service connection for a low back disability. As such action results in a complete grant of the benefit sought (i.e. service connection), it is no longer on appeal. As detailed below, the Board finds that the record reflects substantial compliance with the prior remand directives and the issues are ready for appellate review. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals an updated informal hearing presentation by the Veteran's representative. The remaining evidence is either duplicative of that in the paper claims file or is irrelevant to the issues on appeal. FINDINGS OF FACT 1. The probative evidence establishes that the Veteran does not have disability in either shoulder that was aggravated or incurred during active service; nor is it etiologically related to his service connected low back disability. 2. The probative evidence establishes that the currently diagnosed COPD was not aggravated or incurred during active service, to include exposure to asbestos. 3. The probative evidence establishes that the currently diagnosed sleep apnea was not aggravated or incurred during active service, to include exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012); 38 C.F.R. § 3.310 (2006). 2. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with adequate VCAA notice in July 2003 and March 2006. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In March 2006, he was notified about the assignment of a disability rating and effective date. While this letter was furnished after the issuance of the appealed rating decision, the appeal was subsequently readjudicated in multiple Supplemental Statements of the Case with the most recent being issued in April 2013. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to notify has been met. The Board further concludes that the duty to assist has also been met. Portions of the Veteran's service treatment records, VA treatment records, private medical records, and Social Security Administration records have been obtained, in addition to various written statements by the Veteran himself. In March 2013, he was afforded adequate VA examinations and medical opinions addressing all theories of entitlement. The record reflects that some of the Veteran's service treatment records in the custody of the federal government may have been lost. The missing service records have been determined to be unobtainable. As documented in a March 2004 formal finding of unavailability, the RO took appropriate actions specifically to obtain the missing service treatment records; this includes consideration of the information the Veteran has provided such as the alternate name he was known by during service. It has been determined that the RO has exhausted all available channels to pursue the missing records and it appears that further efforts to obtain the records would be futile. 38 C.F.R. § 3.159; 38 U.S.C.A. § 5103A. The Board believes that the proper procedures have been effectively complied with and that no useful purpose would be served by remand for further notice or development of the record in this case. See M21-1MR, Parts II and III. See Dixon v. Derwinski, 3 Vet App. 261 (1992). The Board recognizes that it has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit-of-the-doubt rule when records in the possession of the government are presumed to have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Board also finds that the record reflects substantial compliance with its prior remands. The March 2013 VA examination reports and opinions are fully responsive to the instructions given in the June 2009, June 2011, and November 2012 remands. The opinions reflect consideration of possible service related etiologies of the motor vehicle accident, respiratory illness, asbestos exposure, and the service connected back disability. They are supported by a thorough rationale. The agency of original jurisdiction (AOJ) then readjudicated the claims by way of an April 2013 Supplemental Statement of the Case. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was at least substantial compliance with all terms of its June 2009, June 2011, and November 2012 remands for the issues decided herein. See D'Aries, supra. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition such joint pain or dyspnea, he is not competent to provide evidence as to more complex medical questions. Id.; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Bilateral shoulder disability As noted above, limited service treatment records are available. The Board has a heightened duty to explain its findings and consider the benefit of the doubt doctrine. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. However, the legal standard for establishing service connection remains the same. Id. The available service treatment records do not show complaints of or treatment for shoulder pain. Notably in December 1972, the Veteran reported generalized aches in his back, knees, and hands. Bursitis was suspected. The available service records also confirm that the Veteran was involved in a January 1985 motor vehicle accident in which his vehicle flipped over. He reported headaches and a strained neck as injuries. On a May 1998 Report of Medical History for Reserve service, the Veteran denied having or ever having a painful or "trick" shoulder. In April 2003, the Veteran reported right shoulder pain. X-rays showed findings within normal limits. The Veteran was initially afforded a VA examination in May 2010 for various musculoskeletal disabilities. X-rays of the bilateral shoulders suggested mild degenerative arthritis. The examiner provided a negative opinion, but did not specifically consider the Veteran's in-service motor vehicle accident or service connected back disability. The Veteran had another VA examination in June 2011. He reported an onset of shoulder pain during active service. Clinical examination was unremarkable. He demonstrated a full range of motion for both shoulders without functional impairment and full muscle strength in both arms. X-rays showed a progression of osteoarthritis since May 2010. The diagnosis was degenerative osteoarthritis of both shoulders. The examiner gave a negative etiology opinion based upon an absence of contemporaneous medical treatment. A VA examination report dated in March 2013 shows that the examiner reviewed the Veteran's claims file in conjunction with conducting the examination of the Veteran. The Veteran reported that he had worked as a boatswains mate in service for 20 years. He described that in the mid 1980s, he started having bilateral shoulder pain diagnosed as bursitis. Clinical examination showed near full range of motion for both shoulders with pain as a slight functional impairment. He did not have tenderness or guarding. He exhibited full muscle strength for both shoulders. Rotator cuff and instability testing did not suggest additional disability. The examiner provided a negative medical opinion, noting that the Veteran described his in-service diagnosis as bursitis. The examiner explained that bursitis was an acute soft tissue inflammation that had no relationship, including aggravation, to degenerative arthritis. It was further indicated that the Veteran complained about increased shoulder pain following the in-service motor vehicle accident. However, he did not receive treatment specifically for his shoulder. Such injury would again be acute and would not have any relationship to the age related progression of osteoarthritis. The examiner further opined that the bilateral shoulder disability was not caused or aggravated by the service connected low back disability. The examiner explained that there was no medical or physiological foundation for lumbar disc disease to cause or aggravate the current osteoarthritis of the shoulder. The Veteran contends that service connection is warranted for his bilateral shoulder disability. Although the available service treatment records do not reflect complaints or treatment for shoulder pain, the record confirms that he had other musculoskeletal injuries in a January 1985 motor vehicle accident. The Board also does not find anything inherently implausible about his reports of generalized in-service shoulder pain. An in-service event is established. The Veteran has been diagnosed with degenerative osteoarthritis in both shoulders. See May 2010 VA X-ray report. A current disability is demonstrated. The remaining issue is whether the current degenerative osteoarthritis in both shoulders is related to active service. Here, the Veteran asserts a continuity of symptomatology beginning in service. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309(a). He is competent to describe his history of shoulder pain. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. In limited instances where an etiology is readily capable of lay observation, he is also competent to provide a nexus opinion. See id. Nonetheless, the current osteoarthritis was only demonstrated many years after service. (See also 38 C.F.R. § 4.71a, Diagnostic Code 5003 requiring X-ray evidence to establish a diagnosis of degenerative arthritis). The determination on whether it is related to service or an intercurrent cause is a medical question. Id. The Veteran is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Jandreau, 492 F.3d at 1376-1377; see also Waters, 601 F.3d 1274; King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316. The competent medical evidence of a nexus is limited to the March 2013 VA medical opinion. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Briefly, the Board notes that while the May 2010 and June 2011 VA medical opinions are competent; they are not adequate for rating purposes and are not for present consideration. (See June 2011 and November 2012 Remands). The March 2013 medical opinion is plausible, consistent with the record, and uncontroverted by any additional medical opinion. It is accompanied by a detailed medical explanation with specific considerations to the Veteran's lay reports of in-service complaints and his service connected back disability. The Board considers the March 2013 VA medical opinion to be highly probative, and it weighs against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In other words, the preponderance of the evidence is against finding a nexus to service, including a secondary relationship to the service connected back disability. For the reasons stated above, a nexus has not been demonstrated; even under VA's heightened duties in the absence of complete service treatment records. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for disability in either shoulder is not warranted. COPD Again, limited service treatment records are available. The Board has a heightened duty to explain its findings and consider the benefit of the doubt doctrine. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. However, the legal standard for establishing service connection remains the same. Id. Available service treatment records do not show that the Veteran was ever diagnosed with COPD; however, they include several complaints about respiratory problems. Service treatment records from November 1973 reflect that the Veteran complained about a productive cough. The examiner observed slight rasps in his chest while breathing. He recommended cough syrup. Another entry from August 1975 reflects that the Veteran had multiple nasal fractures in childhood and reported increased nasal congestion. He was assessed as having a deviated nasal septum. The Veteran had a physical examination for bronchitis residuals in August 1976. The examiner noted a history of bronchitis while in the Navy and pneumonia in 1970. However, no recurrent respiratory infections were reported. The Veteran acknowledged smoking half pack of cigarettes every day for the past twelve years. He currently had a cough that was bothersome when he went to bed and woke up. Clinical examination of mouth and throat were normal. Lungs were clear to percussion and auscultation. The examiner concluded that the Veteran had some irritation from smoking and characterized his coughing complaints as a smoker's cough. He opined that the Veteran did not have any residual disability from bronchitis found in service. The Veteran asserts that he had asbestos exposure. Personnel records confirm that he had military occupational specialty equivalent to a fireman. As further discussed below, in-service asbestos exposure is conceded. On a May 1998 Report of Medical History for Reserve service, the Veteran denied having or ever having shortness of breath or chronic cough. In November 2002, the Veteran sought private medical attention for airway disease. His treating physician authored a December 2003 letter. He confirmed diagnoses of moderately severe obstructive disease with emphysema and severe airways reactive disease. They were confirmed by pulmonary function testing and positive methacoline challenge testing, respectively. He opined that the Veteran was unemployable due to his airway reactive disease. In February 2004, the Social Security Administration awarded disability benefits effective November 30, 2001. The listed disabilities were COPD with emphysema, obstructive sleep apnea, and reactive airway disease. The Veteran was afforded a May 2010 VA examination. He reported smoking for about 40 years. He reported an episode of hemoptysis about one year earlier. He describe current dyspnea upon exertion and at rest. He denied asthmatic attacks. He had a prescription for home oxygen therapy. Clinical examination of his lung showed normal diameter. Auscultation was clear, even, and non-labored. Oxygen saturation was between 97 and 93 percent. Pulmonary function testing showed mild obstructive pulmonary impairment. Computed tomography (CT) scan of the thorax was negative for asbestosis. The examiner provided a negative opinion, but did not consider possible in-service etiologies of respiratory illness and asbestos exposure. VA re-examined the Veteran in June 2011. Pulmonary function testing showed a mild restrictive ventilative defect, but normal diffusing capacity. CT scan of the thorax revealed no pleural calcifications and no classic signs of asbestosis. The examiner again provided a negative opinion, but did not consider the respiratory illness or provide an adequate explanation to support the opinion. In March 2013, the Veteran had his most recent VA examination. The examiner reviewed the claims file and interviewed the Veteran. He again reported smoking for approximately 49 years at rate of up to a pack and half per day. He started oxygen treatment approximately 10 years earlier, and also used Spiriva as an inhalational bronchodilator. Chest X-rays did not suggest cardiopulmonary disease. Pulmonary function testing was not performed. The diagnosis was COPD. The examiner explained that review of medical literature did not show any relationship between asbestos exposure and COPD. Rather, the medical literature suggested that smoking was the most likely etiology. The examiner observed that the Veteran's prior diagnoses of bronchitis and pneumonia in the 1970s were related to bacteria or viruses. These conditions were acute and would not cause or aggravate subsequent COPD. It was also explained that the complaints of nasal congestion and sinusitis were unrelated to the claimed lung condition. The Veteran contends that service connection is warranted for COPD. Available service treatment records show that the Veteran had some respiratory illness in service. Personnel records also show that the Veteran's military occupational specialty as a fireman would likely have exposed him to asbestos. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9, Subsections (a) and (f) (Dec. 13, 2005). In-service events of asbestos exposure and respiratory treatment are established. The medical records show that the Veteran was assessed as having COPD as early as July 2003. He is considered disabled due to it. A current disability is demonstrated. The remaining issue is whether the current COPD is related to active service, to include reported asbestos exposure. Briefly, the Board notes that current regulations explicitly prohibit consideration of in-service tobacco use as a nexus. See VAOPGCPREC 7-99 and 64 Fed. Reg. 52375 (1999). The Veteran is competent to describe his history of observable symptomatology of respiratory or lung disorders. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. In limited instances where an etiology is readily capable of lay observation, he is also competent to provide a nexus opinion. See id. Nonetheless, the current COPD was only demonstrated approximately a decade after service. The determination on whether it is related to service, including asbestos exposure, or an intercurrent cause, such as smoking, is a medical question. Id. The Veteran is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Jandreau, 492 F.3d at 1376-1377; see also Waters, 601 F.3d 1274; King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316. The competent medical evidence of a nexus is limited to the March 2013 VA medical opinion. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Briefly, the Board notes that while the May 2010 and June 2011 VA medical opinions are competent; they are not adequate for rating purposes and are not for consideration. Here, the March 2013 medical opinion is plausible, consistent with the record, and uncontroverted by any additional medical opinion. It is accompanied by a detailed medical explanation with specific considerations to the Veteran's history of asbestos exposure and respiratory illness shown in service. The Board considers the March 2013 VA medical opinion to be highly probative, and it weighs against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King, 700 F.3d 1339. In other words, the preponderance of the evidence is against finding a nexus to service, including conceded asbestos exposure. For the reasons stated above, a nexus has not been demonstrated; even under VA's heightened duties in the absence of complete service treatment records. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for COPD is not warranted. Sleep apnea As noted, limited service treatment records are available. The Board has a heightened duty to explain its findings and consider the benefit of the doubt doctrine. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. However, the legal standard for establishing service connection remains the same. Id. The available service treatment records are negative for any sleep disorder. However, asbestos exposure has been conceded as discussed above. On a May 1998 Report of Medical History for Reserve service, the Veteran denied having or ever having frequent trouble sleeping. VA treatment records from November 2004 reflect that the Veteran had a private sleep study. The results showed sleep apnea with hypoventilation. He was given a continuous positive airway pressure machine (CPAP) for home use. VA examinations and medical opinions from May 2010 and June 2011 are available. However, as they have previously been deemed inadequate for adjudication purposes in June 2011 and November 2012 Remands, they are not for further consideration. The Veteran was afforded a March 2013 VA examination. The examiner reviewed the claims file and interviewed the Veteran. He reported in the late 1990s his wife observed him snoring and associated apneic events while he slept. He recalled that in service he would feel tired despite a full night of sleep. The examiner acknowledged that recent diagnostic sleep study had confirmed sleep disorder breathing, and explained that sleep apnea was caused by a collapse of the airway during sleep and was common in obese patients. The medical literature did not suggest any relationship to asbestos exposure. It also was not related to any lung condition, which would include asbestosis, acute bronchitis, or pneumonia. As noted, in-service asbestos exposure is conceded and the record reflects a current diagnosis of obstructive sleep apnea. The elements of an in-service event and current disability are met. The remaining issue is whether a nexus is present. The Veteran is competent to describe his history of sleep problems or reports given to him by his wife. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. In limited instances where an etiology is readily capable of lay observation, he is also competent to provide a nexus opinion. See id. Nonetheless, the current sleep apnea was demonstrated approximately 13 years after service. The determination on whether it is related to service, including asbestos exposure, or an intercurrent cause is a medical question. Id. The Veteran is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Jandreau, 492 F.3d at 1376-1377; see also Waters, 601 F.3d 1274; King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id; see Davidson, 581 F.3d at 1316. The competent medical evidence of a nexus is limited to the March 2013 VA medical opinion. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Briefly, the Board notes that while the May 2010 and June 2011 VA medical opinions are competent; they are not adequate for rating purposes and are not for consideration. Here, the March 2013 medical opinion is plausible, consistent with the record, and uncontroverted by any additional medical opinion. It is accompanied by a detailed medical explanation with specific considerations to the Veteran's history of asbestos exposure and respiratory illness shown in service. The Board considers the March 2013 VA medical opinion to be highly probative and weigh against the claim. Nieves-Rodriguez, 22 Vet. App. at 304; see also King, 700 F.3d 1339. In other words, the preponderance of the evidence is against finding a nexus to service, including conceded asbestos exposure. For the reasons stated above, a nexus has not been demonstrated; even under VA's heightened duties in the absence of complete service treatment records. O'Hare, 1 Vet. App. at 367; Russo, 9 Vet. App. 46. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for sleep apnea is not warranted. ORDER Service connection for a bilateral shoulder disability is denied. Service connection for a COPD is denied. Service connection for sleep apnea is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs