Citation Nr: 1335166 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-04 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a sleep disorder other than night sweats and insomnia, to specifically include obstructive sleep apnea. 2. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure. 3. Entitlement to service connection for a left foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service from February 1977 to May 1985 and from August 1991 to February 1992, with additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. In November 2010, the Veteran testified before the undersigned at a hearing held at the RO. A transcript (Tr.) of the proceeding has been associated with the claims file. In May 2011, the Board determined that the Veteran had submitted new and material evidence sufficient to reopen his previously denied sleep disorder and left foot claims. The Board then remanded those issues, and the above-captioned respiratory claim, for additional evidentiary development. The Board also remanded separate issues of entitlement to service connection for arthritis, hepatitis C, and night sweats. Those claims have since been granted in a November 2012 rating decision, which has expanded the issue of night sweats to include insomnia. Significantly, the Veteran has not contested the effective dates or initial ratings assigned in the November 2012 rating decision. Nor has he otherwise expressed disagreement with that adjudication. Accordingly, the Board considers the claims addressed therein to be fully resolved and, thus, outside the scope of its jurisdiction. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2013). Moreover, given that service connection has now been established for night sweats and insomnia, the Board has recharacterized the Veteran's remaining sleep disorder claim to specifically exclude those symptoms. As discussed in further detail below, the Board finds that, with respect to that remaining sleep disorder claim, there has been substantial compliance with its prior remand directives such that appellate review may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Conversely, the Board finds that further evidentiary development is needed with respect to the Veteran's respiratory and left foot disorder claims. Accordingly, those issues are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if any further action on his part is required. FINDING OF FACT The Veteran's currently diagnosed obstructive sleep apnea is not related to any aspect of his active military service. Nor is any other sleep disorder, apart from the night sweats and insomnia for which he is already service connected. CONCLUSION OF LAW The criteria service connection for a sleep disorder other than night sweats and insomnia, to specifically include obstructive sleep apnea, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As noted in the Introduction, the Veteran has been granted service connection for a disability manifested by night sweats and insomnia. See November 27, 2012, Rating Decision. He now contends that he is entitled to a separate award of service connection for obstructive sleep apnea. The Board disagrees, however, and finds that the evidence of record is insufficient to link that particular sleep disorder to the Veteran's active military service, for the reasons set forth below. The Veterans Claims Assistance Act of 2000 (VCAA) Prior to reaching the merits of this appeal, the Board must address VA's duties to notify and assist pursuant to the VCAA. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 VCAA notice requirements apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is established. Id. at 486. VCAA notice must generally be provided prior to an initial unfavorable decision on a claim by the AOJ. 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). In this case, the VCAA notice provisions were satisfied through a January 2004 letter, which advised the Veteran of the evidence needed to substantiate his claim for service connection for a sleep disorder, as well as the division of responsibilities that he and VA shared in developing the appeal. A subsequent letter, mailed in March 2010, explained the types of information and evidence needed to establish a disability rating and an effective date, even though such notice has now been rendered moot with respect to the claim decided herein. Collectively, the above notice letters not only comported with the Pelegrini provisions but also satisfied the heightened VCAA requirements set forth in Dingess. Moreover, while cognizant that the March 2010 letter was sent after the initial rating decision, the Board observes that the appeal has since been readjudicated, first in a December 2006 statement of the case (SOC) and then again in a January 2013 supplemental statement of the case (SSOC). Such readjudications are sufficient to cure any VCAA timing defect inherent in this case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a SOC or SSOC, is sufficient to cure a timing defect). Further, while mindful that the Veteran has not been expressly notified of the secondary aspect of his sleep disorder claim, the Board finds that he has demonstrated actual knowledge of the relevant VCAA notice provisions. Indeed, the Veteran has essentially attributed all of his service and nonservice-connected sleep disorders to the hostile military trauma that gave rise to his PTSD. See Board Hearing Tr. at 34. As such, he has shown that he understands the criteria governing service connection for one sleep disorder (obstructive sleep apnea) as secondary to another such disorder (insomnia and night sweats) for which VA benefits have been granted under an analogous theory of entitlement (i.e., as secondary to PTSD). These displays of actual knowledge, viewed in tandem with the subsequent notice provided in the January 2013 SSOC, are sufficient to cure any prejudice arising from the foregoing VCAA letters. Thus, absent other evidence to the contrary, the Board finds that the duty to notify has been satisfied with respect to the Veteran's sleep disorder claim. The Board also finds that the duty to assist has been met with respect to that claim. In this regard, the Board recognizes that one of the other issues on appeal - service connection for a respiratory disorder - is predicated on a theory of in-service exposure to asbestos. As such, that claim is governed by VA administrative protocols requiring development that has yet to be completed and, thus, must be accomplished on remand. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993); see also M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). However, the Veteran has not alleged that in-service asbestos exposure either caused or aggravated his obstructive sleep apnea, or any other sleep disorder contemplated in this appeal. Nor has the record otherwise suggested that this was the case. To the contrary, as discussed in greater detail below, a medical professional has expressly ruled out a theory of in-service asbestos exposure in connection with Veteran's sleep disorder claim. It follows that the particular guidelines governing such exposure need not be observed with respect to that claim. Indeed, such additional development would only delay adjudication, without benefiting the Veteran, and should therefore not be undertaken. Nor should any other development be undertaken in support of the Veteran's sleep disorder claim. The AOJ has already obtained his service treatment records, as well as all post-service Federal and private records that he has identified in connection with that claim. Significantly, there is no indication of any outstanding records that are necessary to adjudicate that issue. In addition to records procurement, the AOJ has assisted the Veteran by affording him a September 2011 VA examination in support of his sleep disorder claim. Although the September 2011 VA examiner declined to address whether the Veteran's obstructive sleep apnea was etiologically related to his active service, a subsequent medical opinion, dated in January 2013, was responsive to that question. While that opinion was unfavorable to the Veteran, he has not alleged, and the record has not otherwise shown, that it was inadequate to decide his sleep disorder claim. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007). As such, the Board considers it unnecessary to remand for a new examination or opinion with respect to that issue. The Board also considers it unnecessary to remand for a hearing as the Veteran has already had the opportunity to testify in support of the claim decided herein. As discussed, he appeared at a December 2010 hearing before the undersigned, who set forth the sleep disorder claim at the start of the proceeding, then focused on the elements required to substantiate that issue. The undersigned also sought to identify any further development that was required, for example, by eliciting testimony from the Veteran regarding the onset of his sleep apnea and his treatment for that sleep disorder. See Board Hearing Tr. at 34-35. Through these actions, which later prompted the Board to remand for a new VA examination and etiological opinion, the undersigned satisfied the duties of a Veterans Law Judge to explain fully the issue on appeal and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error. Moreover, there is no indication that the Veteran was otherwise denied due process during his Board hearing. In light of the foregoing, the Board is satisfied that the duties to notify and assist have been met with respect to the sleep disorder claim and that appellate review of that issue may now proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Merits of the Claim for Service Connection The Veteran contends that he developed sleep disturbances while deployed overseas during Operation Desert Storm. See Board Hearing Tr. at 34. Significantly, many of his complaints have been encompassed in his award of service connection for night sweats and insomnia. However, he also has reported symptoms comporting with a diagnosis of obstructive sleep apnea, for which VA benefits have not been granted. Id. at 35. Accordingly, the Board will consider whether that particular sleep disorder and its underlying symptoms may serve as the basis for a separate award of service connection in this case. The Board recognizes that, although the Veteran has alleged that his sleep apnea began in service, he also has claimed that it arose in tandem with his night sweats and insomnia, while asserting that those symptoms, in turn, were precipitated by his service-connected PTSD. Accordingly, the Board will consider the Veteran's current sleep disorder claim under both direct and secondary theories of entitlement. See 38 C.F.R. §§ 3.303, 3.310; see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (noting that Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record). Service connection may be established on a direct basis where there is probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service incurrence or aggravation. 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). Alternatively, service connection may be granted for a disease or injury that is proximately due to or the result of a service-connected disability, including on the basis of aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) a nexus between the two. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability will itself be service connected. 38 C.F.R. § 3.310(b). The Board notes that VA amended its regulation pertaining to secondary service connection, effective October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The amendment appears to place additional evidentiary burdens on claimants seeking service connection based upon a theory of aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the alleged worsening. Because this additional requirement renders the revised regulation more restrictive than its predecessor, and because the Veteran in this case submitted his claim before that revision was made, the Board will consider his appeal under the version of the law that existed prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). In addition to the foregoing theories of direct and secondary entitlement, service connection may be rebuttably presumed for chronic diseases enumerated in 38 C.F.R. 3.309(a). That list of chronic diseases, however, does not include sleep apnea. Nor does it contemplate any other sleep disorder alleged by the Veteran, or otherwise of record, for which VA benefits have yet to be obtained. Accordingly, the Board need not consider whether to grant the Veteran's sleep disorder claim on a presumptive basis and will instead confine its analysis to the theories of service connection outlined above. To prevail under any of these applicable theories of entitlement, the Veteran must meet the evidentiary requirements of his claim, while the Board must assess the competency and credibility of the evidence presented so as to determine its overall probative weight. See Fagan v. Shinseki, 573 F. 3d 1282, 1287-88 (2009) (noting that the claimant bears the burden of establishing all of the elements of his claim, including the nexus requirement); see also Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); 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'). In circumstances where there is an approximate balance of positive and negative evidence, the Board must afford the Veteran the benefit of the doubt. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). Moreover, the Board must not ignore or disregard any medical professional's opinion, but may favor one such opinion over another by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). Factors for discerning the probative value of medical opinion evidence include whether the opinion is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay evidence of record. This includes any evidence not requiring specialized education, training, or experience. Such evidence will be deemed competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); 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 may also be competent and sufficient to support a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. Once the competency of lay evidence has been established, its credibility must be weighed according to factors such as self-interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, consistency with other evidence of record, malingering, desire for monetary gain, and the demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board now turns to the pertinent evidence at issue in this appeal. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Veteran's service records confirm that he deployed to Southwest Asia for Operation Desert Storm and that he also served in Cuba, Great Britain, Iceland, Panama, and Grenada during his military career. At no time during those deployments, however, did the Veteran allege, or otherwise demonstrate, symptoms suggestive of sleep apnea. Nor did he manifest such symptoms at any time throughout the remainder of his active service. The Veteran's post-service records reflect that, in October 2003, he sought VA treatment for "a bad sleeping disorder," which, by his own account, had "been going on for years," coincident with stress. That initial manifestation of sleep impairment was later found to support a diagnosis of insomnia, which was clinically linked to his service-connected PTSD. See, e.g., January 9, 2004, VA PTSD Consult (identifying nightmares and poor sleep related to his memories of enemy fire sustained during Operation Desert Storm). The Veteran was also diagnosed with obstructive sleep apnea; however, that disorder was not attributed to his PTSD, or to any other aspect of his active service. Pursuant to the Board's May 2011 remand, the Veteran was afforded a September 2011 VA examination, which confirmed his prior diagnoses of insomnia and sleep apnea. However, while the examining VA clinician opined that the insomnia had likely originated in service, he declined to comment on the etiology of the Veteran's sleep apnea. Consequently, the AOJ determined that an additional medical opinion was needed with respect to that particular sleep disorder. But see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). The requested medical opinion was rendered in January 2013 by a licensed physician, who reviewed the September 2011 VA examination report, as well as the other pertinent evidence of record. Based upon that review, the January 2013 examiner noted that the Veteran had served as a Navy underwater construction technician, an occupational specialty that put him at risk for asbestos exposure. The examiner further noted that, while still on active duty, the Veteran had enrolled in an asbestos surveillance program . Nevertheless, the examiner opined that there was no evidence of actual asbestos exposure during the Veteran's service. The examiner then opined that, while the Veteran continued to meet the diagnostic criteria for obstructive sleep apnea, that disorder was less likely than not due to his claimed asbestos exposure, or to any other aspect of his active service. Instead, the January 2013 examiner surmised that the Veteran, who had a body mass index of 33, was clinically obese and that his obstructive sleep apnea was a direct consequence of the "narrowing of [his] upper airway as a result of obesity or increased peripharyngeal fat deposition." The Board recognizes that the above examiner's opinion did not take into account VA's administrative protocols governing asbestos-exposure claims. In fact, the requisite development set forth in those protocols has yet to be conducted and must therefore be undertaken on remand. It follows that, to the extent the January 2013 examiner has ruled out any in-service asbestos exposure in this case, his findings are based on incomplete facts and, thus, are inadequate for rating purposes. See Stefl, 21 Vet. App. at 123; see also Miller v. West, 11 Vet. App. 345, 348 (1998). However, while that particular deficiency must be corrected, on remand, prior to the disposition of the breathing disorder claim, no such development is needed with respect to the instant issue. To the contrary, by indicating that the Veteran's sleep apnea is wholly unrelated to any asbestos exposure, real or perceived, the January 2013 examiner has effectively opined that, even if such exposure did take place, his findings regarding the etiology of that sleep disorder would remain unchanged. Accordingly, the Board concludes that the inadequacy inherent in the January 2013 examiner's report does not extend to the Veteran's sleep disorder claim. Moreover, the Board is satisfied that the examiner's findings with respect to that claim are both competent and credible and, as such, are entitled to probative weight. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the competency, credibility, and weight to be attached to medical opinions are within the province of the Board as adjudicators). In making this determination, the Board considers it significant that the January 2013 examiner predicated his findings on a complete review of the pertinent evidence of record. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri, 4 Vet. App. at 470-71; Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting generally that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). The examiner also supported his findings with a detailed rationale. This included a discussion of the Veteran's BMI and its impact on his obesity and, by extension, sleep apnea. Such a demonstrated awareness of established medical principles, in tandem with the examiner's status as a licensed physician, adds to the overall weight of his findings. See Boggs v. West, 11 Vet. App. 334 (1998); Black v. Brown, 10 Vet. App. 279, 284 (1997) (noting the general importance of an examiner's knowledge and skill in analyzing the medical data). The probative value of the January 2013 examiner's findings is further bolstered by the lack of any contradictory medical evidence. Indeed, no other private or VA clinician has indicated that the Veteran's currently diagnosed sleep apnea is in any way related to his active service. As such, the examiner's findings are wholly consistent with the salient facts of this case, thereby serving as a reliable evidentiary foundation for the Board's decision on the Veteran's sleep apnea claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that while the Federal Rules of Evidence are not binding on the Court, nor on the Board, the rules on expert witness testimony provide useful guidance in assessing the probative weight of medical opinions); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Having thus established the probative value of the January 2013 examiner's opinion, the Board considers it sufficient to show that service connection for obstructive sleep apnea is unwarranted. Indeed, that opinion makes clear that the Veteran's sleep apnea is a byproduct of his obesity and, as such, is unrelated to his active military service, including any asbestos exposure incurred therein. The Board recognizes that the Veteran has not raised a theory of in-service asbestos exposure with respect to his sleep apnea, and has argued instead that the disorder arose during Operation Desert Storm. In support of that particular theory of direct service connection, he has offered a detailed account of persistent sleep problems following his return from Iraq. See Board Hearing Tr. at 34. While a layperson, the Veteran is competent to report the onset and continuity of such symptoms, which he has personally experienced. Layno. However, such evidence of continuity of symptomatology is no longer sufficient to grant service connection for disabilities, including sleep apnea, which lie outside the scope of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 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)). Conversely, direct service connection for those disabilities may still be established through competent and credible evidence of recurrent symptoms, including that provided by a layperson. See 38 C.F.R. § 3.303(d) (noting generally that "service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service"). Nevertheless, the Board has reason to question whether such lay evidence has been presented in the instant case. That is because the Veteran's current complaints of recurrent sleep problems are belied by his lack of complaints or treatment for such symptoms, either during service or for several years thereafter. The Board acknowledges that the mere absence of contemporaneous clinical data is insufficient, standing alone, to deny a service-connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). However, such an unexplained gap in treatment is a factor for consideration, particularly, where, as here, the other evidence of record weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during the active military service and resulted in a chronic or persistent disorder). Even assuming that the Veteran's complaints of recurrent sleep problems, dating back to his active service, were wholly competent and credible, service connection would still be unwarranted in light of the January 2013 examiner's negative nexus opinion. The Board is mindful that examiner did not specifically address the Veteran's Desert Storm allegations. Nevertheless, by denoting an alternate etiology for the Veteran's obstructive sleep apnea, one that is entirely separate from his military service, that examiner effectively negated any theory of direct in-service incurrence or secondary causation or aggravation, including that which the Veteran himself has raised or which is otherwise suggested by the record. In reaching these conclusions, the Board remains sympathetic to the Veteran and does not doubt the sincerity of his belief that his obstructive sleep apnea is related to his military service, either on a direct basis or as secondary to his service-connected night sweats, insomnia, and PTSD. Just as the Veteran is competent to attest to the onset and continuity of tangible symptoms, he is likewise capable of opining on medical questions that fall within the realm of common knowledge. See Kahana, 24 Vet. App. at 435. Such questions, however, do not include the etiology of his sleep apnea, which requires medical expertise to resolve. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer); see also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ('Although 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. '). Indeed, that is particularly true in this case, given the multifaceted nature of the Veteran's sleep disorders, which include both service and nonservice-connected components. As discussed, the Veteran is already in receipt of service connection for a sleep disorder manifested by insomnia and night sweats. Therefore, for the Board to separately compensate him for those symptoms would violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 260 (1994) (holding that separate ratings may only be awarded where none of the symptomatology for one ratable condition is duplicative or overlapping with another ratable condition). Nevertheless, the Board recognizes that separate awards of service connection are permitted for distinct diagnoses, which have overlapping symptoms that warrant only a single assigned rating. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009) (noting that "two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). Thus, in determining whether a separate award of service connection is proper in this instance, the Board has relied on the January 2013 examiner to resolve the Veteran's complex disability picture and to demonstrate the lack of any nexus between his obstructive sleep apnea and active service. Clearly, the Veteran disagrees and believes that an in-service nexus exists with respect to that particular sleep disorder. However, in contrast with the January 2012 examiner, the Veteran lacks the expertise to make such a finding, on either a direct or secondary basis. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for obstructive sleep apnea, the only sleep disorder of record for which he is not already service connected. As such, while mindful of the benefit of the doubt doctrine, the Board finds that rule is not for application and that the Veteran's claim must therefore be denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013). ORDER Service connection for a sleep disorder other than night sweats and insomnia, to specifically include obstructive sleep apnea, is denied. REMAND While the Veteran also seeks service connection for respiratory and left foot disorders, further development is needed prior to the disposition of those claims. 38 C.F.R. § 19.9. As noted in the preceding section, the Veteran has attested to a history of in-service asbestos exposure. Specifically, he has testified that such exposure took place "about 1979," during his initial period of service, when he was assigned to a construction battalion unit at Pensacola Naval Air Station in Florida. See Board Hearing Tr. at 8. Even as a layperson, the Veteran is competent to report that he came in contact with asbestos during service. See McGinty v. Brown, 4 Vet. App. 428 (1993). Moreover, while he has neither alleged nor demonstrated that such exposure contributed to any of his aforementioned sleep disorders, he has contended that it served as a direct cause of his current breathing problems. Indeed, the Veteran has testified that, while still on active duty, he was screened for asbestos-related illnesses, and that "on a couple of occasions [in-service clinicians] found some small spots on [his] lungs." See Board Hearing Tr. at 8-9. The Veteran has further testified that, since leaving the military, he has experienced recurrent shortness of breath, unexplained coughing, and associated respiratory abnormalities, which have been found to warrant clinical diagnoses of mild obstructive and restrictive lung defect, as well as chronic bronchitis. Id. at 9. In light of the Veteran's contentions, and the clinical evidence of current respiratory disorders, the Board finds that the VA administrative protocols pertaining to asbestos exposure are applicable to his claim. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). In this regard, the Board notes that, while there are no specific statutory or regulatory directives governing compensation claims based on asbestos exposure, VA has several guidelines for developing such claims. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005); see also Ashford v. Brown, 10 Vet. App. 120 (1997). Those specific guidelines direct VA to determine develop the record so as to ascertain whether there is evidence of in-service asbestos exposure, evidence of civilian occupational or other pre-service or post-service asbestos exposure, and evidence of a relationship between the in-service asbestos exposure (if any) and the claimed disease. The above VA guidelines also note that the latency period for asbestos-related diseases varies from 10 to 45 years (or more), and that such diseases can develop from brief exposure to asbestos or as a bystander. However, those guidelines do not create a presumption of in-service asbestos exposure. Rather, they make clear that medical-nexus evidence is required in claims for asbestos-related diseases arising from such exposure. Dyment v. West, 13 Vet. App. 141 (1999); VAOPGCPREC 4-2000 (2000), 65 Fed. Reg. 33422 (2000). In this case, the Veteran's service records reflect that, on a March 1980 medical surveillance questionnaire, he complained of exposure to asbestos while "rip[ping out]" lagging (a type of insulation). Those records also show that the Veteran was enrolled an asbestos medical surveillance exposure program during service, but do not indicate that any actual in-service exposure to asbestos was ever verified in his case, Therefore, in accordance with the VA's established guidelines governing asbestos-related claims, the Board finds that, on remand, the AOJ should contact the service department, or other appropriate authority, and request an opinion as to whether the circumstances of the Veteran's service would have exposed him to asbestos. Additionally, while cognizant that the Veteran has not reported any post-service asbestos exposure, the Board finds that an adequate post-service employment history has not yet been obtained. Therefore, in accordance with above protocols, efforts to obtain such a history should also be made on remand. Thereafter, the Veteran should be afforded a VA examination that addresses whether any currently diagnosed respiratory disorder was caused or aggravated by any aspect of his active service, including any asbestos exposure incurred therein. 38 U.S.C.A. § 5103A(d) (West 2002 & 2013); 38 C.F.R. § 3.159(c)(4) (2013). The Board acknowledges that, pursuant to its prior remand, the Veteran was afforded a September 2011 examination, which confirmed that he had mild obstructive and restrictive lung disease, as well as chronic bronchitis. The Board further recognizes that, following that examination, a VA medical officer opined that it was less likely than not that the Veteran's obstructive and restrictive lung defect was related to his claimed asbestos exposure, or to any other in-service injury, event, or illness. See January 2013 VA medical opinion regarding entitlement to service connection for a respiratory disorder. Instead, the January 2013 examiner determined that the "most likely etiology" of the Veteran's respiratory disorder was his "past smoking history with associated chronic bronchitis." Tellingly, however, the January 2013 examiner did not base his opinion on a review of the record that had been developed according to the aforementioned protocols governing asbestos-exposure claims. Without the benefit of such a review, the January 2013 examiner's opinion is predicated on insufficient facts and, thus, not yet adequate for rating purposes. But see Stefl, 21 Vet. App. at 123 (2007); Barr, 21 Vet. App. at 311 (holding that once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Moreover, the Board considers it significant that, while noting that the Veteran's chronic bronchitis was "associated" with his prior smoking history, the January 2013 opinion did not include specific findings as to whether that respiratory disorder was also related to his claimed asbestos exposure, or to any other aspect of his military service. Such an evidentiary omission further reduces the probative value of that medical opinion. Accordingly, the Board finds that, following the completion of the other development outlined above, the claims file should be forwarded to the January 2013 examiner for a clarifying opinion as to whether any of the Veteran's current respiratory disorders is related to his active service, including any asbestos exposure incurred therein. A clarifying opinion is also needed with respect to the Veteran's left foot disorder claim. As with the other issues on appeal, the Veteran was previously afforded a VA examination in support of that claim; however, the medical opinions that ensued were contradictory and at odds with the remaining record. The first such opinion was rendered by a VA clinician who conducted the requested examination and thereafter concluded that the Veteran had left foot planus with calcaneal spurring, which was "[a]t least as likely as not related to [his] in-service injury." See September 2011 VA Foot Examination Report. Significantly, however, the examiner neither elaborated on the nature of the in-service injury nor otherwise provided a rationale in support of his findings. See, e.g. Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion'). In light of the above deficiencies, the AOJ requested an addendum opinion, which proved to be unfavorable to the Veteran's claim. Indeed, despite detailing his account of a left heel injury sustained during a 1990 in-service parachuting jump, the October 2012 addendum opinion indicated that neither this incident, nor any other aspect of service, had caused the Veteran's current left foot disorder, noting in this regard: The Veteran had multiple documented traumas in his active military career, including a motor cycle accident, falls, and parachute landings that provided the joint trauma to accelerate the development of degenerative joint disease found in his shoulders, knees, ankles and right foot . . . Despite the history of injury from parachute jumping with fracture, the current left foot X-ray findings are of congenital pes planus, and a calcaneal spur that could be clinically asymptomatic or associated with plantar fasciitis, for which he did not complain and was not treated or evaluated while on active duty. While appreciative of the October 2012 examiner's detailed rationale, the Board nevertheless finds that his overall opinion is inadequate for rating purposes. By classifying the Veteran's left foot pes planus as congenital in nature, the October 2012 examiner raised the question of whether that condition constitutes a "disease" or a "defect." Such a distinction is critical since diseases and defects carry separate legal requirements for service connection. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)) (noting that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating,'" and that a defect and a disease have separate legal requirements for service connection). Specifically, the presumption of soundness applies to claims involving congenital diseases, which, as in the instant case, are absent on entry. See 38 U.S.C.A. § 1111; see also Report of February 1977 Enlistment Examination (indicating that pes planus was not noted at the time the Veteran entered service). Conversely, that presumption does not extend to claims for congenital defects. In such instances, however, service connection is still permissible based upon evidence of aggravation of the pre-existing defect by a superimposed injury or disease. Accordingly, as the Board is precluded from determining on its own whether the Veteran's pes planus constitutes a disease or defect, a medical opinion is needed to answer this question. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Moreover, if the Veteran's pes planus is determined to be a disease, then the questions of whether it clearly and unmistakably preexisted service, was incurred in service, or was aggravated by service must be also addressed. See 38 U.S.C.A. § 1111 (outlining the presumption of soundness, whereby a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service). Conversely, if his pes planus is found to constitute a defect, then the question of whether it was aggravated in service by a superimposed disease or injury must be answered. Furthermore, the Board observes that the Veteran has essentially argued that his left foot disorder shares the same etiology as the degenerative arthritis disabilities for which he is presently service-connected. See Board Hearing Tr. at 13. His contentions in this regard are sufficient to raise a theory of secondary service connection, which should be addressed by the clinician who renders the clarifying opinion, requested above. See 38 C.F.R. § 3.310; see also Robinson, 557 F.3d at 1361. Specifically, that clinician should address whether any currently diagnosed left foot disorder - to specifically include any pes planus disease for which the presumption of soundness is not rebutted - was caused or aggravated by his service-connected degenerative arthritis of the left ankle, left knee, right knee, right ankle, and right foot. That clinician should also address whether any other diagnosed left foot disorder, such as the calcaneal spurring and plantar fasciitis noted by the October 2012 examiner, are related to the Veteran's active service, either on a direct basis or as secondary to one or more service-connected disabilities. Additionally, it does not appear that the Veteran has yet received VCAA notice of the secondary theory of entitlement raised with respect to his left foot disorder claim. Accordingly, proper notice should be provided on remand. 38 C.F.R. § 3.310. Finally, all outstanding VA records pertinent to the Veteran's pending respiratory and left foot disorder claims should also be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2013); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VCAA notice letter that advises him of the information and evidence needed to substantiate his claim for service connection for a left foot disorder secondary to his service-connected degenerative arthritis of the left ankle, left knee, right knee, right ankle, and right foot. 2. Obtain and associate with the claims file all records of treatment for respiratory and left foot disorders administered at the Montgomery, Alabama, VA Medical Center since September 2013 (the date of the most recent records associated with the Veteran's Virtual VA eFolder). All development efforts should be documented in the paper claims file and/or the Virtual VA eFolder. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items (1) and (2), contact the service department, or other appropriate authority, and request verification of whether the Veteran's activities during service would have exposed him to asbestos. To facilitate this request, attach a copy of all relevant documents in Veteran's claims file, including his specific assertions of in-service asbestos exposure in or around 1979, when he was assigned to a construction battalion unit at Florida's Pensacola Naval Air Station. 4. Request that the Veteran provide a complete civilian employment history for the periods between May 1985 and August 1991, exclusive, and from February 1992 to the present. 5. After completing the development requested in items (1) through (4), request a records review and addendum opinion from the January 2013 VA respiratory disorders examiner (or another examiner if the January 2013 examiner is unavailable). The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If the reviewing clinician determines that a physical examination is necessary, then one must be scheduled. The reviewing clinician should specifically respond to the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that any current respiratory disorder, to specifically include obstructive and restrictive lung disease and chronic bronchitis, was caused or aggravated beyond its natural progression by the Veteran's reported exposure to asbestos in service? (b) Is it at least as likely as not (a 50 percent or greater probability) that any current respiratory disorder, to specifically include obstructive and restrictive lung disease and chronic bronchitis, is otherwise etiologically related to the Veteran's active military service? For purposes of this remand, the examiner should accept as true the Veteran's account of recurrent breathing problems persisting since service, unless the examiner can identify clear medical evidence that contradicts that account. A report of the clarifying opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After completing the development requested in items (1) through (4), request a records review and addendum opinion from the October 2012 VA joint disorders examiner (or another examiner if the October 2012 examiner is unavailable). The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. If the reviewing clinician determines that a physical examination is necessary, then one must be scheduled. The reviewing clinician should specifically respond to the following questions: (a) Is the Veteran's left foot pes planus a congenital defect (i.e., static in nature) or a congenital disease (i.e., capable of worsening and improvement)? (b) If the pes planus is a congenital defect, was it aggravated during service by a superimposed injury or disease, to specifically include the left foot fracture that the Veteran sustained after jumping from an airplane? (c) If the pes planus is a congenital disease, is it clear and unmistakable (i.e., undebateable) that the condition existed prior to the Veteran's active military service? (d) If the answer to question (c) is "Yes," then is it clear and unmistakable (i.e., undebateable) that the pes planus was not aggravated by the Veteran's active military service? (d) Is it at least as likely as not (50 percent or greater probability) that pes planus or any other current left foot disorder, including calcaneal spurring and plantar fasciitis but excluding any preexisting congenital disease or defect, had its onset in, or is otherwise related, to the Veteran's active military service? (e) Is it at least as likely as not (50 percent or greater probability) that pes planus or any other current left foot disorder, including calcaneal spurring and plantar fasciitis but excluding any preexisting congenital disease or defect, was caused or aggravated by one or more of the Veteran's service-connected arthritic disabilities (diagnosed as degenerative arthritis of the left ankle, left knee, right knee, right ankle, and/or right foot)? For purposes of this remand, the examiner should accept as true the Veteran's account of recurrent left foot pain and related symptoms persisting since his 1990 in-service left foot fracture, unless the examiner can identify clear medical evidence that contradicts that account. A report of the clarifying opinion should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues remaining on appeal. If any requested benefit remains denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2013). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs