Citation Nr: 1004072 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 99-14 722 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for shortness of breath, to include as due to an undiagnosed illness. 2. Entitlement to service connection for vomiting, to include as due to an undiagnosed illness. 3. Entitlement to service connection for diarrhea, to include as due to an undiagnosed illness. 4. Entitlement to service connection for claimed diabetes mellitus. 5. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 6. Entitlement to service connection for muscle twitching, to include as due to an undiagnosed illness. 7. Entitlement to service connection for blurred vision, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The Veteran had active service from August 1983 to June 1987 and from March 1988 to August 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 RO rating decision. In November 2000 and March 2004, the Board remanded the case to the RO for further development. In July 2005, the Board issued a decision denying service connection for vomiting, diarrhea and shortness of breath. The Board remanded the other four issues on appeal (service connection for diabetes mellitus, fatigue, muscle twitches and blurred vision) to the RO for further development. The Veteran thereupon appealed the July 2005 decision to the Court of Appeals for Veterans Claims (Court). In February 2008 the Court issued a Memorandum Decision vacating the Board's decision as regards the claims denied therein and remanding those issues to the Board for actions in compliance with the Court's Order. In December 2008 the Board remanded all issues to the RO for further development. The issues of service connection for diabetes mellitus, fatigue, muscle twitching and blurred vision are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The Veteran served in Southwest Asia during the Persian Gulf War. 3. The claimed shortness of breath has not been attributed to a known disability, but it has not manifested to a degree of 10 percent or more. 4. The claimed vomiting and diarrhea are shown to be attributable to pancreatic exocrine dysfunction, a known clinical diagnosis, which was not manifested in service and is not otherwise shown to be related to service. CONCLUSIONS OF LAW 1. The Veteran does not have a disability manifested as shortness of breath due to a disease or injury that was incurred in or aggravated by active service; nor may any be presumed to be due an undiagnosed illness that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2009). 2. The Veteran does not have a disability manifested as vomiting due to an undiagnosed illness or other disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2009). 3. The does not have a disability manifested as diarrhea due to an undiagnosed illness or other disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the "reasons or bases" requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. I. Duties to notify and assist As an initial matter, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist veterans in the development of a claim. The VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In April 2004 and July 2005, the AMC sent the Veteran letters advising him that in order to substantiate his claim for service connection the evidence must show that a relationship exists between his current disability and an injury, disease, or event in military service. The April 2004 letter also advised the Veteran that service connection was available on a presumptive basis for Gulf War veterans for certain chronic disabilities which develop within a specified period of time after discharge. The Board accordingly finds that the Veteran has received sufficient notice of the information and evidence needed to support his claims for service connection and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the April 2004 and July 2005 letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The April 2004 and July 2005 letters advised the Veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the Veteran that VA must make reasonable efforts to help the Veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained, the first three content-of-notice requirements have been met in this appeal. On April 30, 2008, VA amended its regulations governing its duty to provide a claimant with notice of the information and evidence necessary to substantiate a claim. See 73 Fed. Reg. 23,353 (Apr. 30, 2008). Importantly, the third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications for benefits pending before VA on, or filed after, May 30, 2008. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the Veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the Veteran. Since VCAA was not enacted until November 2000, furnishing the Veteran with VCAA notice prior to the adjudication in February 1999 was clearly both a legal and a practical impossibility. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7-2004. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the Veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated in the June 2009 supplemental statement of the case after notice was provided. As indicated, the RO gave the Veteran notice of what was required to substantiate the claims on appeal, and the Veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the Veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review, or alleged any prejudice in terms of VCAA notification. Shinseki v. Sanders, 129 S.Ct. 1696, 1705 (2009). Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2009). More recently, the Board notes that on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court 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 (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the Veteran's status is not at issue, and as indicated the AMC advised the Veteran of the second and third Dingess elements (existence of a disability, connection between the veteran's service and that disability). The RO has not specifically advised the Veteran of the fourth and fifth Dingess elements (degree of disability and effective date pertaining to the disability). However, the Board's action herein denies service connection for the claimed disabilities, so no degree of disability or effective date will result from the Board's action. There is accordingly no possibility of prejudice under the notice requirements of Dingess in regard to the claim for service connection. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment record (STR), post service VA and private treatment records, the Veteran's statements and those of other laypersons, and a VA examination reports dated in September 2002 and June 2004. The report of these examinations reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examinations are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Law and Regulations A. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). B. Undiagnosed Illness Under 38 C.F.R. § 3.317 (2009), a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. See also Extension of the Presumptive Period for Compensation for Gulf War Veterans, 71 Fed. Reg. 75,669-75,672 (December 18, 2006). A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses); or (3) any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i) (2009). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii) (2009). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3) (2009). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4) (2009). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b) (2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Veteran's contentions can be grouped into two theories: (1) that his claimed disabilities are due to an undiagnosed illness due to Persian Gulf service; and (2) that his claimed disabilities, even if not due to an undiagnosed illness, are direct results of claimed "injuries" in service, to include chemical/biological exposure and pyridogistimine bromide (PG) pills. The Board will address contention each in turn. However, his overarching contention is that some unknown aspect of his Persian Gulf service caused the claimed disabilities. A. Undiagnosed illness due to Persian Gulf service The Veteran does not necessarily contend that his claimed shortness of breath, vomiting and diarrhea are "stand alone" disorders. Rather, he contends that such are manifestations of an undiagnosed illness due to his service in the Persian Gulf, and that he should be compensated for such under 38 U.S.C.A. § 1117. In September 2002 and June 2004, VA examiners conducted a full and thorough physical examination of the Veteran, with specific emphasis on his shortness of breath, vomiting and diarrhea complaints. The Veteran indicated he experienced episodes of shortness of breath once every three months and that his vomiting and diarrhea symptoms now manifested as nausea once per month which he did not treat with medication. Pulmonary function tests (PFTs) and chest X-rays during both examinations were normal, as was physical examination of the Veteran's lungs and abdomen. The September 2002 examiner highlighted an upper gastrointestinal (GI) series conducted in 1992 which was unremarkable, and noted that the recent treatment records made no significant mention of breathing disabilities or GI symptoms. Crucially, the September 2002 VA examiner specifically opined that he could not attribute the Veteran's shortness of breath, vomiting or diarrhea symptoms to an undiagnosed illness incurred during Persian Gulf service: Given the history provided of these symptoms, many of them are intermittent, and so were not appreciated on the evaluation today. Given the lack of clear documentation of treatment or evaluation in the current clinic progress notes in terms of these symptoms, [he could] not attribute them to any clinically diagnosed illness nor [was] there affirmative evidence, at this time, that this [was] an undiagnosed illness incurred during active service during the Gulf War. Subsequently, the June 2004 VA examiner, having reviewed records of the Veteran's hospitalization that same month, opined that the recently diagnosed chronic pancreatitis accounted for his longstanding symptoms of vomiting and diarrhea. That the Veteran's vomiting and diarrhea are attributable to pancreatitis is also supported by the opinion of a July 2004 VA physician. Additionally, VA physician T.M., M.D., who diagnosed the Veteran with pancreatic exocrine dysfunction in September 2009, indicated medication prescribed for the condition had eliminated 70 to 80 percent of the Veteran's vomiting and diarrhea symptoms. The medical evidence of record thus reflects the Veteran's vomiting and diarrhea are attributable to a known cause, pancreatic exocrine dysfunction. The evidence also shows that the Veteran's complaints of shortness of breath have not manifested to a degree of 10 percent disabling at any time since service. The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. 38 C.F.R. § 4.97. The General Rating Formula for Interstitial Lung Disease (Diagnostic Codes 6825 through 6833) provides that Forced Vital Capacity (FVC) of 75- to 80-percent predicted value, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. 38 C.F.R. § 4.97. Diagnostic Code 6602 provides ratings for bronchial asthma. Forced Expiratory Volume in one second (FEV-1) of 71- to 80- percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy, is rated 10 percent disabling. A Note to Diagnostic Code 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97. In this Veteran's case, the evidence does not show that for any time since service separation the complaints of breathing problems have manifested to a compensable (10 percent) degree. The evidence does not show that at any time breathing symptoms have manifested FEV-1 of 71- to 80-percent predicted value; or FEV-1/FVC of 71 to 80 percent; or DLCO (SB) of 66- to 80-percent predicted; or FVC of 75- to 80- percent predicted value; or intermittent inhalational or oral bronchodilator therapy, as required for a 10 percent rating under any of the potentially applicable Diagnostic Codes. 38 C.F.R. § 4.97. The competent medical evidence is therefore against the conclusion that the claimed shortness of breath, vomiting and diarrhea are due to an undiagnosed illness. The Board notes that the Veteran has submitted a letter from registered physician's assistant J.D.W. outlining the general provisions of 38 C.F.R. § 3.317(b) (2009). This letter provides no medical statement in support of the Veteran's claims. In any event, the Court has held that medical evidence is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). To the extent the Veteran argues that his shortness of breath, vomiting and diarrhea symptoms are reflective of an undiagnosed illness, his assertions do not constitute competent medical evidence. The Board is aware that the Veteran's DD 214 form indicates that his MOS was cardiac specialist. His separation qualification record indicates that he completed a general medical orientation course for four weeks and a cardiac specialist course for eight weeks. It appears that the Veteran has had no subsequent medical training, nor has he been employed in any medical capacity. Although he is certainly competent to report symptoms (e.g., pain in his chest, shortness of breath, vomiting, diarrhea, etc.) that he experienced, the Board finds that such rudimentary training does not render him competent to opine on more complex medical matters such as etiology of diseases. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr, supra at 10 (2007). See also 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"). The Board has also considered the other lay evidence of record, including the statements from the Veteran's family and from a fellow serviceperson. These statements are probative evidence regarding symptomatology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) ('[a] layperson can certainly provide an eyewitness account of a veteran's visible symptoms'). However, they do not provide objective evidence of etiology of a disease. See 38 C.F.R. § 3.159 (a)(1), supra. Accordingly, in light of the competent medical evidence indicating the claimed shortness of breath, vomiting and diarrhea are not related to an undiagnosed illness, the provisions of 38 C.F.R. § 3.317 (2009) do not apply. B. Service connection on a direct basis The Veteran has alternatively contended that his shortness of breath, vomiting and diarrhea were caused by various incidents of his service, namely chemical/biological exposure and pyridogistimine bromide (PG) pills. As noted, in order to establish direct service connection for a claimed disorder, there 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. The Board will address each element in turn. With regard to element (1), current disability, the medical evidence in this case, in particular the examination reports in September 2002 and June 2004, does not show that a diagnosed illnesses manifested by shortness of breath exists. In that regard, pulmonary function testing and chest X-ray studies were completely normal. Additionally, the Veteran specifically denied having shortness of breath, chest pain and dyspnea during exertion during VA examinations for unrelated claims in October 1991 and November 1993. An examination of the lungs during these times, as well as during a February 1994 Persian Gulf War examination and August 1997 and August 2005 VA examinations were normal. To the extent that the Veteran may have certain complaints, symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Thus, the Board finds that Hickson element (1) is not satisfied as to shortness of breath, and, in the absence of a proof of present disability, there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This is the essence of the first part of the Hickson analysis. Absent competent evidence of current disability, the claim of service connection for shortness of breath must be denied. As for the claims for vomiting and diarrhea, as described above the June 2004 VA examiner diagnosed the Veteran with pancreatitis, and Dr. T.M. rendered a diagnosis of pancreatic endocrine dysfunction accounting for the Veteran's vomiting and diarrhea symptoms with supporting lab test results in September 2009. Accordingly, Hickson element (1) is met for the vomiting and diarrhea claims only. With respect to Hickson element (2), in-service disease or injury, the Board will separately address in-service disease and injury. With respect to in-service disease, contrary to the assertions of the Veteran's representative the service treatment record (STR) is completely negative for any complaints of shortness of breath, vomiting or diarrhea. On the report of medical history for his August 1991 separation examination, though the Veteran indicated that he lost weight while deployed and subsequently gained it back, he specifically denied having shortness of breath or stomach or intestinal trouble. Clinical evaluation of the lungs and gastrointestinal system was completely normal. With respect to in-service injury, the Veteran has made numerous contentions as to various in-service injuries which he feels led to his current medical problems, including chemical/biological exposure and PG pills. The Board does not necessarily doubt that some such exposure may have occurred. However, there is no indication in the record of any specific injury the Veteran sustained from chemical/biological exposure or PG pills. The Veteran's contention that such exposure somehow resulted in injury amounts to mere speculation on his part. The Veteran has submitted a letter from the Office of the Secretary of Defense indicating that he "[might] have been in an area where exposure to a very low level of nerve agents was possible." However, the letter went on to state that "our analysis show[ed] that exposure levels would have been too low to activate chemical alarms or to cause any symptoms at the time . . . the current medical evidence indicate[d] that long-term health problems [were] unlikely." The material submitted by the Veteran, couched in speculation, does not serve to establish that he was injured in service. The Board notes that the Veteran has been awarded service connection for posttraumatic stress disorder based events occurring when his unit was attached to a combat support hospital in Operation Desert Shield. See, e.g., the April 2003 rating decision. However, the Veteran cannot benefit from the combat presumption. In order to qualify for combat status, 38 U.S.C. § 1154 requires that the Veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. It does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99. A review of the Veteran's DD Form 214 indicates that he has no awards or decorations indicative of combat status. Merely because the Veteran served during the Persian Gulf War does not allow for the combat presumption; he must offer proof that he actually engaged in fighting with the enemy. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Combat service is therefore not established. In short, no in- service injury is demonstrated. In the absence of in-service disease or injury, element (2) has not been met for all claims. Finally, with respect to Hickson element (3), medical nexus, the September 2002 VA examiner specifically found that the Veteran's current shortness of breath, vomiting and diarrhea symptoms were not attributable to his Persian Gulf War service. There is no competent medical evidence to the contrary. In this regard, the Board acknowledges a July 2009 opinion of D.R., M.D., which indicates he was unable to come to any conclusion as to whether the Veteran's symptoms are due to Persian Gulf service. Also of record is Dr. T.M.'s September 2009 statement that the Veteran's pancreatitis "could date back to 1984 . . . which would make it a service-connected disability." However, these opinions are speculative and inconclusive in nature and cannot support the claim. See Obert, Beausoleil, and Libertine, all supra. In any event, in an addendum statement Dr. T.M. indicated the correct date of his statement should have been 1994, which is years subsequent to service. The Veteran himself has also asserted that such a relationship exists between the claimed conditions and his service in Southwest Asia, and has submitted numerous lay statements to this effect. The Board has already detailed hereinabove how the Veteran's rudimentary medical training in service does not render him competent to opine on more complex medical matters such as etiology of diseases. Moreover, the submissions from other laypersons do not provide objective evidence of etiology of a disease. See 38 C.F.R. § 3.159 (a)(1), supra. These statements are accordingly entitled to no weight of probative value. Accordingly, the competent and probative medical evidence of record, namely the September 2002 VA examination report, indicates that the Veteran's shortness of breath, vomiting and diarrhea complaints are not related to his military service. The Board adds that the Veteran has had ample opportunity to secure medical nexus evidence in his favor and submit same to VA. He has not done so. See 38 U.S.C.A. § 5107(a), supra. The Board has also considered the Veteran's contentions of a continuity of symptomatology since service. As noted, the Veteran is competent to describe symptoms, and his assertions of a continuity of symptomatology are of some probative value. The Court has held that, even where a Veteran asserted continuity of symptomatology since service, medical evidence was required to establish "a nexus between the continuous symptomatology and the current claimed condition . . ." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). In this instance, a September 2002 VA examiner, who conducted a thorough physical evaluation and reviewed the results of spirometry testing, chest X-ray studies and negative 1992 upper GI study, concluded that the Veteran's symptoms of shortness of breath, vomiting and diarrhea were unlikely to be related to Persian Gulf service. The Board finds that this opinion by a competent health provider to be more probative than the assertions of the Veteran and other lay persons regarding continuity of symptomatology. Moreover, the Board highlights a CT scan of the abdomen dated in January 1995, four years after separation from service, in which "the pancreas demonstrate[d] no abnormality." Accordingly, Hickson element (3) is thus also not satisfied. The claims also fail on that basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for shortness of breath, to include as due to an undiagnosed illness, is denied. Service connection for vomiting, to include as due to an undiagnosed illness, is denied. Service connection for diarrhea, to include as due to an undiagnosed illness, is denied. REMAND A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. In this case, the Board agrees with the Veteran's representative that the RO did not fully comply with the Board's July 2005 remand instructions, which directed the RO to afford the Veteran a VA examination to determine the onset and likely etiology of any diabetes mellitus. The remand instructed that: The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. Although a VA examination was completed in August 2005 in response to the Board's remand, the report of such examination does not indicate that the examiner reviewed all pertinent documents in the Veteran's claims file as requested. Indeed, the examiner specifically indicated that "the military service records reviewed in the c-file, were not flagged by the RO for any elevated blood sugars. There was a normal blood sugar of 84 in the earlier years of his military service. However, Veteran states the elevated blood sugars were in his later years of military service. he also states there should be more military records than what are available today in the c-file . . . In fairness to the [V]eteran's claim, all military health records would need to be obtained by the Rating Board for a review of lab work from that period, specifically to look for elevated blood sugars." It does not appear that the examiner reviewed the service medical records from the Veteran's second period of service, which contain a number of blood sugar testing results, to include testing in conjunction with the Veteran's August 1991 separation examination. Because the August 2005 VA examination report does not indicate complete review of the claims folder as requested, an additional examination is needed. See Stegall, supra. Acting on the Veteran's claims for fatigue, muscle twitching and blurred vision will be deferred pending resolution of the claim of entitlement to service connection for diabetes mellitus. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined)). Prior to arranging for the Veteran to undergo VA examination, the RO should send the Veteran a letter meeting the requirements of Dingess/Hartman, 19 Vet App 473 (2006), as regards the five elements of a claim for service connection, as appropriate. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should send the Veteran a notice letter meeting the requirements of Dingess/Hartman, cited above, with respect to the five elements of a claim of service connection, as appropriate. 2. The Veteran should be afforded a VA examination to determine the onset and likely etiology of diabetes mellitus. All necessary special studies or tests should be accomplished. It is imperative that the examiner review the evidence in the claims file, including a complete copy of this REMAND, and acknowledges such review in the examination report. The examiner should specifically consider the Veteran's contentions of elevated blood sugar readings during his second period of active service from 1988-1991. Following examination of the Veteran, the examiner should specifically offer an opinion as to the following: (a). Is it is at least as likely as not (50 percent probability or more) that the Veteran has type I diabetes mellitus that had its clinical onset during his military service? (b). If not, is it is at least as likely as not (50 percent probability or more) that diabetes mellitus was manifested within a year following the Veteran's discharge from service? The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. A complete rationale should be given for all opinions and should be based on examination findings, historical records, and medical principles. 3. To help avoid future remand, RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the foregoing, and after undertaking any further development deemed necessary, the RO should readjudicate the issues on appeal, in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs