Citation Nr: 1328093 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 00-05 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include as due to herbicide exposure. 2. Entitlement to service connection for a headache disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to February 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse action by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was previously before the Board on multiple occasions, most recently in July 2012 and April 2013, at which time the current appellate claims were remanded for further development to include VA medical examinations to address the nature and etiology of the claimed gastrointestinal and headache disabilities. Such examinations were accomplished in September 2012 and June 2013, and, as detailed below, the Board finds that this development is adequate for resolution of this case. All other development previously directed by the Board regarding these claims appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board observes that the Veteran also perfected appeals on issues other than those listed on the title page. However, these claims have either been denied or otherwise finally adjudicated, leaving only the gastrointestinal and headache claims for appellate review. As an additional matter, the Board notes that the Veteran has raised claims of entitlement to an increased rating for his service-connected hearing loss, as well as entitlement to a total rating based upon individual unemployability (TDIU). However, the record available for the Board's review does not reflect these claims have, as yet, been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Although the Veteran served during the Vietnam War Era, the record does not reflect that he served in Vietnam, or that he was otherwise exposed to herbicides while on active duty. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic gastrointestinal disability that was incurred in or otherwise the result of his active service, or that it is secondary to a service-connected disability. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic headache disorder that was incurred in or otherwise the result of his active service, or that it is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a gastrointestinal disability are not met, to include as due to herbicide exposure and/or as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for a grant of service connection for a gastrointestinal disability are not met, to include as due to herbicide exposure and/or as secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent VCAA-compliant notification via letters dated in February 2003, February 2004, March 2006, December 2007, March 2010, February 2011, August 2011, October 2011, December 2011, July 2012, and April 2013. Although all of these letters were clearly not sent prior to the initial adjudication of the current appellate claims, they were all sent prior to the most recent adjudication below in the July 2013 Supplemental Statement of the Case (SSOC). This development "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Further, these letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indentified any outstanding evidence relating the etiology of his current gastrointestinal disability or headaches to military service. He has indicated that no Board hearing is desired in conjunction with this case. Moreover, he was accorded VA medical examinations in September 2012 and June 2013 which included opinions that addressed the etiology of the claimed disabilities. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. Although the Board previously determined that the September 2012 VA examinations were not adequate for resolution of the gastrointestinal and headache claims, these deficiencies were corrected by the June 2013 examinations. No competent medical evidence is of record which specifically refutes the findings of the June 2013 VA examinations, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this development is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic disease that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has contended, in part, that he developed chronic gastrointestinal problems and headaches as a result of in-service herbicide exposure. The law provides that if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). However, VA specifically stated that the accepted medical definition of ischemic heart disease does not extend to other conditions, such as hypertension, peripheral artery disease, and stroke that do not directly affect the muscles of the heart. Id. at 53204. Further, for purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to a herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered a herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. In this case, the Board finds that the Veteran's claimed exposure to herbicides has not been established. The Board has reviewed the evidence submitted by the Veteran and obtained on his behalf, including command chronologies, and none of the evidence of record, other than the Veteran's lay statements, indicates that the Veteran was ever exposed to Agent Orange or any other herbicide, to include while cleaning planes. Indeed, the Veteran has not specifically alleged service in Vietnam, but rather, asserts that he was exposed to herbicides while serving aboard the USS Kearsarge, the USS Forrestal, and the USS Saratoga. To the extent that the Veteran has alleged direct herbicide exposure from cleaning planes that had flown in Vietnam and were contaminated with Agent Orange, the Veteran does not assert that he personally observed or handled any barrels of herbicides, and he has not presented any competent or scientific evidence to support his assertion of actual exposure. The Veteran is competent to testify that he cleaned planes; however, he is not competent to determine that the planes were covered in Agent Orange or any other herbicide. The Veteran has not identified any reason he believes planes he cleaned were contaminated with Agent Orange other than the fact that the planes came from Vietnam. There is simply no evidence that the Veteran had specific scientific knowledge such that he could identify Agent Orange residue by smell, sight, etc., and he has not claimed that he could. The Board also finds that the evidence does not support herbicide exposure due to proximity to Vietnam. The Board notes VA's Compensation and Pension Service has identified a number of "blue water" Navy vessels that conducted operations on the inland "brown water" rivers and delta areas of Vietnam and certain other vessel types that operated primarily or exclusively on the inland waterways, which are now subject to the presumption of exposure to herbicides under 38 C.F.R. §§ 3.307 and 3.309. However, the USS Kearsarge, USS Forrestal, and USS Saratoga are not vessels recognized as having conducted "brown water" operations in Vietnam. Moreover, the Veteran has not submitted any evidence supporting that those ships would have operated in the rivers, delta areas, or inland waterways of Vietnam. Thus, consideration of exposure under the theory that his ships operated in close proximity to the shoreline, and therefore should be recognized as a "brown water" vessel, is not appropriate to the facts in this case. The Board further notes that in May 2009, the U.S. Army and Joint Services Records Research Center (JSRRC) issued a Memorandum for Record titled "Research Findings Regarding Navy and Coast Guard Ships During the Vietnam Era;" which noted that "to date, the JSRRC has found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides." The memorandum further noted that the JSRRC could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.l. In view of the foregoing, the Board must conclude that there is simply no competent evidence establishing that the Veteran was exposed to herbicides during his service. While the Veteran alleges the exposure occurred on a second-hand basis through contact with planes that had been in Vietnam, there is no provision of law establishing a presumption of such exposure. He is not qualified to identify herbicide compounds or to opine that such were on the specific planes that he cleaned, and there is no competent evidence establishing that planes he cleaned had any residuals of herbicide on them. Therefore, he is not entitled to consideration of the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(e). No other presumptive provision appears applicable to this case. The Board further notes that even if it were to find the Veteran did have in-service herbicide exposure, he would still not be entitled to a grant of service connection for his claimed gastrointestinal disability and/or headaches. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). In this case, a thorough review of the record does not reflect either of the claimed disabilities have been attributed to one of the recognized disabilities found at 38 C.F.R. § 3.309(e). As the Veteran is not entitled to a grant of service connection for either disability on a presumptive basis, the Board must now determine whether they are directly related to service. The Board acknowledges that the Veteran, as a lay person, is competent to describe symptoms of upset stomach, vomiting, diarrhea, and headaches. However, such stomach symptoms, as well as headaches, are common conditions that may be due to multiple causes such as stress, injury, or other illness. The question of whether one experiences a chronic gastrointestinal disability and/or chronic headaches of the same etiology is a complex issue, which, in this case, the Board finds requires competent medical evidence to resolve. Further, to the extent the record suggests that either the claimed gastrointestinal and/or headache disability is secondary to an already service-connected disability, the Board finds that competent medical evidence is also required to resolve that question. The effect one disability has upon another involves complex medical issues, particularly as here where the disabilities in question involve diseases processes. Moreover, this finding is supported by Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) in which the Federal Circuit held in the context of a claimant contending secondary service connection that the claimant's own conclusory generalized statement that his service illness caused his present medical problems was not enough to entitle him to a medical examination. If such a contention is not sufficient to warrant a medical examination, it is clear that it is not sufficient to warrant a grant of service connection in the absence of competent medical evidence in support thereof. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). In this case, the Board acknowledges that the Veteran's service treatment records has references to gastroenteritis, to include in November and December 1986, and headaches, to include in September 1977. However, these records indicate that the complaints were due to acute conditions that resolved with treatment. No chronic gastrointestinal or headache disability appears to have been diagnosed while on active duty, to include service examinations conducted in January 1965, July 1968, December 1974, December 1980, September 1982, and December 1986. Moreover, the first post-service medical evidence of the claimed disabilities appears to have been years after his separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). In addition, the fact that the claimed gastrointestinal and headache disabilities were first diagnosed after service further supports the need for competent medical evidence to resolve the matter. As already noted, opinions were expressed regarding the etiology of the claimed disabilities by VA examiners in September 2012 and June 2013. With respect to the gastrointestinal disability, the September 2012 VA examiner diagnosed gastroesophageal reflux disease (GERD), and opined that it was less likely as not (less than 50 percent probability) related to service. In support of this opinion, the examiner stated that the service treatment records do not support a chronic or ongoing condition of GERD; that the GERD was diagnosed in 2000 which was more than 13 years after the Veteran's active service; and that the GERD was at least as likely as not related to hiatal hernia and elevated BMI of 40.02. The examiner also indicated the Veteran had narrowing of the distal pylorus which was less likely as not related to service as the service treatment records do not support such a condition. The June 2013 VA examiner diagnosed GERD and hiatal hernia, and indicated it was less likely as not that either disability was related to service. The examiner stated that the Veteran's in-service treatment for viral gastroenteritis in 1986 resolved without sequelae/complications; that the GERD was due to the hiatal hernia; noted that the hiatal hernia was first diagnosed after service; and that the hiatal hernia was related to process aging and elevated BMI. In addition, the examiner indicated that it was less likely as not that the GERD and/or hiatal hernia were caused or aggravated by the service-connected anxiety disorder, noting that medical literature did not support such a relationship. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, both the September 2012 and June 2013 VA examiners were aware of the Veteran's medical history regarding his gastrointestinal disability from review of his VA claims folder, as well as the examination itself. Further, both expressed opinions that the disability was not incurred in or directly related to service; and that his problems, to include the diagnosis of GERD, was ultimately due to the hiatal hernia. The June 2013 VA examiner indicated the hiatal hernia was due to the Veteran's age and BMI, and not due to any disease or injury of his active service. Neither of these opinions are expressed in equivocal or speculative language, and both were supported by stated rationale with reference to the record and/or medical literature. Although the Board previously found the September 2012 VA examination to be inadequate, this was due to the examiner not addressing the matter of secondary service connection. However, secondary service connection was addressed by the June 2013 VA examiner, and it was stated that the current gastrointestinal disabilities were not caused or aggravated by the service-connected anxiety disorder. Nothing in the record indicates this disability is secondary to any other service-connected disability. Therefore, the Board finds that these opinions are persuasive and entitled to significant probative weight in evaluating this claim. Regarding the headaches claim, the September 2012 VA examiner noted diagnoses of migraine headaches and tension headaches. The examiner noted that the Veteran experienced a tension headache in service associated with ill-fitting glasses, which had since resolved. The examiner also opined that the diagnosed migraine headaches were less likely as not related to service. In support of the opinion offered, the examiner stated that VA medical records and private medical records did not document a chronic or ongoing headache condition. However, the Board previously found that this opinion was inadequate for rating purposes, as it was contradicted by evidence of record. Specifically, a private treatment note dated as early as May 1992 reflects a report of occasional headaches, and VA treatment notes dated as early as January 1996 show complaints of chronic headaches. Moreover, Fioricet was prescribed for headaches in September 1996 and October 1997, and VA treatment notes dated from October 2000 to May 2007 generally show active medications to include prescription headache medicine. Further, an August 2006 VA treatment note reflects a complaint of tension headaches. Given the evidence suggesting an ongoing headache condition, contrary to the VA examiner's conclusion, the Board found that a new opinion was necessary. As with the gastrointestinal disability, the Board found that this examination did not address secondary service connection. For example, in an undated written statement, the Veteran reported that his headaches were related to stress and ringing in the ears, and the Veteran is service-connected for both a psychiatric disorder and tinnitus. Following the Board's April 2013 remand, the June 2013 VA examiner diagnosed the Veteran with sinus headaches, and opined that they were less likely as not related to military service, or cause or worsened by his service-connected anxiety disorder/tinnitus. The examiner noted that the Veteran had one (1) in-service visit for sinus infection with negative sinus X-ray in June 1985; his service treatment records were lacking visit for ongoing headache disorder or chronic sinus problems while on active duty; and that the medical literature did not indicate any relationship between sinus headaches and anxiety disorder/tinnitus. The Board has previously determined that the June 2013 VA examiner's opinion was supported by an adequate foundation as it was based upon both a review of the Veteran's VA claims folder and physical examination. Further, the examiner's opinion is not expressed in equivocal or speculative language, and is supported by stated rationale with reference to either relevant findings in the record and/or medical literature. In pertinent part, the examiner stated that there was no indication of either a chronic headache or sinus disorder during service. Moreover, the Board previously determined in April 2013 that service connection was not warranted for a sinus disability, and nothing indicates the Veteran appealed that decision to the Court. The examiner also addressed the issue of secondary service connection, and indicated that the medical literature did not indicate any such relationship between the type of chronic headaches the Veteran currently experiences and his service-connected anxiety disorder and/or tinnitus. Therefore, the Board finds this opinion to be persuasive and entitled to significant probative value in this case. In summary, even though the Veteran was treated for both gastrointestinal problems and headaches while on active duty, the service treatment records indicate they were acute and transitory symptoms which were due to specific conditions at that time; no chronic gastrointestinal or headache disability was diagnosed during service or for years thereafter; and competent medical opinions are of record, which the Board has found to be adequate and persuasive, which are against the current disabilities being etiologically linked to service or as secondary to service-connected disabilities to include on the basis of secondary aggravation; and no competent medical opinion is of record which supports a grant of service connection in this case. For these reasons, the Board finds the preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has a chronic gastrointestinal disability or a chronic headache disorder that was incurred in or otherwise the result of his active service, or that they are secondary to a service-connected disability. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. ORDER Service connection for a gastrointestinal disability, to include as due to herbicide exposure, is denied. Service connection for a headache disorder, to include as due to herbicide exposure, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs