Citation Nr: 1340233 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 01-01 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include as due to an undiagnosed illness. 2. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1988 to April 1992, including in the Southwest Asia Theater of Operations during the Persian Gulf War. These matters are before the Board of Veterans' Appeals (Board) on May 2007 remand from the United States Court of Appeals for Veterans Claims (Court) for compliance with instructions in a May 2007 Joint Motion for Remand by the parties (Joint Motion). The case was originally before the Board on appeal from an August 2001 rating decision by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). In January 2003, a Travel Board hearing in this matter was held before a Veterans Law Judge who is no longer employed by the Board (the case has been reassigned to the undersigned); a transcript of the hearing is associated with the claims file. In December 2003 the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for further development. In September 2005, the Board issued a decision denying, in pertinent part, the Veteran's application to reopen his claims for service connection for a respiratory disorder and for headaches. The Veteran appealed the Board's decision to the Court, and a May 2007 Court Order vacated the September 2005 Board decision and remanded the matter to the Board for development and readjudication consistent with the May 2007 Joint Motion. In November 2007 the Board remanded the case for further development. In December 2009, the Board again remanded these issues for further development. In April 2013, the Board sent notice to the appellant informing him of his right to a new hearing before a Veterans Law Judge who would decide his appeal, and explaining that if he did not respond within 30 days it would be assumed that he did not desire to a new Board hearing. He did not request another hearing. During the pendency of this appeal, an April 2009 RO rating decision granted service connection for posttraumtic stress disorder (PTSD), and the Veteran initiated an appeal of the rating assigned with a June 2009 notice of disagreement. The RO issued a statement of the case addressing the matter in September 2010 (along with a partial grant of an increased rating). The Veteran did not thereafter file a substantive appeal to perfect an appeal of the issue to the Board; consequently, this issue is not on appeal before the Board. The Board notes that previously there was some confusion regarding the Veteran's representation (as was discussed in the Introduction to the November 2007 Board remand); the Board explained that it had determined that it was appropriate to recognize attorney Theodore C. Jarvi as the Veteran's representative. In the December 2009 Board decision and remand, the Board continued to recognize that attorney as the Veteran's representative. An April 2011 letter from the attorney expresses that he has withdrawn from representation of the Veteran. In August 2013, the Board sent a letter to the Veteran notifying him that the attorney has revoked his power of attorney in this appeal and affording him opportunity to designate another organization or person to represent him. He was informed of his options and instructed that if he did not respond within 30 days the Board would assume that he wishes to represent himself and would proceed with review of the appeal. He did not reply to the letter. Accordingly, the Board proceeds with review of this appeal with the understanding that the Veteran is proceeds pro se. The Veteran's claims of service connection for a respiratory disorder and for headaches were previously considered and denied in a December 1998 rating decision. Hence, the issues were previously characterized as claims to reopen. However, the evidence associated with the record since the issuance of the December 1998 rating decision includes the Veteran's service treatment records (STRs), which were unavailable at the time of the December 1998 rating decision. A governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA decided the claim, VA will reconsider the claim, notwithstanding that generally new and material evidence to reopen the claim is required for de novo consideration following a prior final denial of a claim. The regulation identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Hence, these claims warrant de novo review.. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran is not shown to have a chronic respiratory disability; any recent suggestions of possible early obstructive disease feature a known clinical diagnosis etiologically attributed to smoking tobacco, not manifested in service, and not shown to be related to the Veteran's service. 3. The Veteran's migraine headaches along with post-traumatic and post-seizure headaches are attributed to known clinical diagnoses; they were not manifested in service, and are not shown to be related to his service. CONCLUSIONS OF LAW 1. Service connection for a respiratory disability, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1118, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). 2. Service connection for headaches, to include as due to undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to the most recent readjudication of the claims. Notification letters in March 2004 and July 2008 explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The July 2008 letter also informed the Veteran of disability rating and effective date criteria. All notice was provided prior to the most recent RO readjudication of the case, as evidenced by the September 2012 supplemental statement of the case. The VCAA notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. Copies of the Veteran's service treatment records (STRs) are now associated with his claims file. The Veteran's pertinent available postservice treatment records (and records from Social Security Administration (SSA)) have been secured, including his VA medical records. The Veteran has been afforded several VA examinations in this matter, and the December 2009 Board remand directed that new adequate VA examinations were necessary; new VA examinations were completed in April 2010 and December 2011; both issues were addressed in each examination. As discussed below, the Board finds that the April 2010 and December 2011 VA examination reports are adequate for the purposes of this decision in that they are informed by review of the claims-file, they collectively address the determinative threshold questions regarding diagnosis and etiology, and they are informed by competent medical examination of the Veteran to make the diagnostic determinations. The Veteran has submitted evidence and has not identified any additional pertinent evidence that remains outstanding. The Board finds there has been compliance with the instructions of the Board's prior remands addressing these issues remaining on appeal. The April 2010 and December 2011 VA examination reports present medical information and opinions collectively addressing each question presented by the Board's most recent remand directives. Additionally, prior directives concerning the duties to notify and assist have been substantially complied with, and the Veteran has not contended otherwise. Accordingly, the Board finds that VA's duty to assist is met and will address the merits of the claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the regulation. (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the January 2003 Board hearing the presiding VLJ identified the issues on appeal and the hearing featured discussion of the facts with regard to the elements of the claim. The Veteran was assisted at the hearing by his then representative (Arizona Department of Veterans Services). The representative and the presiding VLJ asked questions to ascertain the Veteran's contentions and identify potentially pertinent facts and evidence. Moreover, neither the Veteran nor his past representatives have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or alleged prejudice in the conduct of the Board hearing. The Veteran has submitted lay statements from himself and witnesses, and has identified private medical providers from which the claims-file contains pertinent medical records. The Veteran has been assisted during nearly all of the pendency of this appeal by representatives with knowledge of the elements of his claims and the applicable laws and regulations. To send the Veteran a letter to further suggest that the Veteran submit evidence which may have been overlooked would be "an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969). The Veteran has submitted evidence and has not identified any additional pertinent evidence that remains outstanding. Accordingly, the Board finds that VA's duty to assist is met and will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served in the Southwest Asia Theater of Operations during the Gulf War as shown by service personnel records (SPRs) including his DD Form 214. Compensation may be paid to any Gulf War Veteran "suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses)." 38 U.S.C.A. § 1117. These may include, but are not limited to, headache signs or symptoms. 38 C.F.R. § 3.317(b). The chronic disability must have manifested 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, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. Objective indications of a 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. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) IBS; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). To date, VA has identified only the three illnesses listed above as medically unexplained chronic multisymptom illnesses. 38 C.F.R. § 3.317(a)(2)(i)(B)(1)-(3). Accordingly, under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which 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, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §§ 1117 , 1118; 38 C.F.R. § 3.317. When a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110, 1131 is necessary. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after discharge, 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 or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). An April 2009 RO rating decision the Veteran service connection for PTSD; in connection with that determination the RO found that the Veteran had engaged in combat with the enemy. In the case of a veteran who engaged in combat with the enemy in active service during a period of war, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent evidence. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Significantly, in this case the Veteran's testimony and contentions have made no indication of any pertinent in-service injury or manifestations associated with headaches or respiratory disability during any combat event during active duty service. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA," with an emphasis on the evidence relevant to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service personnel records show that the Veteran's served in Saudi Arabia from December 1990 to June 1991, and was thus possibly exposed to hazardous substances. Respiratory Disability The Veteran contends that he suffers from a chronic respiratory disability which he believes is the result of an undiagnosed illness related to exposures during service in the Persian Gulf. The Veteran has not presented any contentions otherwise identifying in-service events pertinent to his claimed respiratory disability, and he has not articulated any contentions alleging that his claimed respiratory disability is a secondary consequence of a service-connected disability. Veteran did not receive treatment for any respiratory symptom or complaints while on active duty. His STRs contain no suggestion of any respiratory complaints or diagnoses during service; in April 1992 he declined a service separation examination. VA and private treatment records show respiratory complaints and diagnoses of a cold, upper respiratory infection, and pharyngitis. The reports of VA examinations and a pulmonary function test show a mild restrictive lung defect. Written statements reflect the Veteran's belief that he has a respiratory disorder that is due to his active service. A May 1998 VA examination report assessed: "Dyspnea on exertion, cause not clear. There is a possibility this could be exercise induced asthma. He had also been a smoker." A March 1999 VA treatment report notes that pulmonary function testing found "mild restrictive and obstructive defects." The assessment was "mild COPD" of "unclear" etiology. A July 1999 VA treatment report notes a medical assessment of "Undiagnosed illness: arthralgias" with "COPD" and "Suspect sleep apnea." The VA and private treatment records, to include x-ray reports, show continued treatment for respiratory complaints, including occasional indications of decreased lung function, attributed to various possible diagnoses including sinusitis (in a November 1999 private medical report), an upper respiratory infection (in a November 1999 private medical report), mild chronic obstructive pulmonary disease of unknown etiology (in a March 1999 VA medical report), strep pharyngitis (in a September 1993 private medical report), a common cold, allergic rhinitis, bronchitis (during a September/October 1999 private hospitalization for subdural hematoma), atypical pneumonia (in a December 1999 private medical report), sleep apnea (in a July 1999 VA medical report), and some medical concern for possible tuberculosis (from a positive PPD and observed lung nodules, in a March 2004 private medical report). The reports of older VA examinations provide the following information: (1) In March 2001, the Veteran reported a lung condition, but an examiner noted a normal lung examination; (2) Magnetic resonance imaging (MRI) of the chest during this examination found no abnormalities; (3) The Veteran was seen by pulmonary consultants in April 2001, underwent pulmonary function studies, and was found to have symptoms secondary to deconditioning and mild restrictive disease secondary to obesity; (4) The Veteran smoked one half pack to one pack of cigarettes daily for an unknown period of years (per an April 2004 VA examination report); and (5) In April 2004, an examiner diagnosed no diagnosable lung disease - variable dyspnea of unknown cause. A May 2004 pulmonary function testing (PFT) report shows spirometry was within normal limits, lung volumes were within normal limits, diffusion capacity was within normal limits, and FEF change was interpreted as an insignificant response to bronchodilator. Most of the written statements of record do not refer to the Veteran's respiratory disorder. The December 2000 written statement of one of the Veteran's brothers, however, indicates that the Veteran complained of breathing difficulty following his service in the Persian Gulf. The transcript of the January 2003 Board hearing testimony includes the Veteran's assertions that he has a respiratory disorder that is related to his service in the Persian Gulf, particularly, his in-service exposure to hazardous substances. On April 2004 VA examination in connection with the Veteran's claim of service connection for a respiratory disorder the examiner noted the Veteran's medical history and current complaints. Following physical examination, the examiner noted the Veteran's dyspnea was previously attributed to deconditioning and restriction secondary to obesity. He indicated that the symptoms were now somewhat variable and did not suggest any specific diagnosable condition. It was also noted that the Veteran recently had pneumonia and that a chest x-ray should indicate whether the pneumonia had cleared. [An addendum to the examination report states that a chest x-ray was not obtained and that the reason was unknown.] The April 2004 VA examiner commented that there was no diagnosable lung disease, but stated that the Veteran had variable dyspnea of an unknown cause. The Board's December 2009 remand noted that it remained unclear whether the Veteran may have a current diagnosis of a respiratory disorder or some undiagnosed illness featuring dyspnea that is related to his military service. The Board directed that another VA examination and medical opinion were necessary to determine the nature and etiology of any and all respiratory disorders that may be present. An April 2010 VA examination report includes the examining doctor's opinion: "It is more likely that early obstructive disease secondary to past tobacco abuse is the cause of the symptoms and less likely as not that they are due to an undiagnosed illness related to service in southwest Asia." In supporting this opinion with an informed rationale, the examining physician cited examination findings and review of the claims-file, finding "there was no respiratory condition evident in service," and finding that "[t]he only diagnosed respiratory conditions have been temporary ones including pneumonia." The examiner explained that the Veteran "has mild chronic dyspnea on exertion," but "[u]p to now, he has had no objective findings of a medical condition which could be implicated." It was further explained that "[c]urrent PFT's however are suggestive of possible early obstructive disease, with air trapping, and improved flow after bronchodilator," and that this lone possible emerging pathology "is compatible with his past smoking history." The examiner noted that the Veteran reported light smoking for a "few years." This April 2010 VA examination report also shows that the pulmonary function studies showed "[n]o obstruction," chest x-ray was "normal," the chest was "normal" to percussion, the diaphragms moved well, breath sounds were intact throughout all lung fields, there were no rales, rhonchi or wheezes, and there were no friction rubs heard. Additionally, the VA examiner comments: "Combined with effects of alcoholic cirrhosis and history of polysubstance abuse[,] the degree of symptomatology he describes is compatible with that interpretation." Indeed, the examiner commented that "[t]his issue cannot be addressed without referring to his major, diagnosed health problem, which is alcoholic cirrhosis, with what is probably controlled or at least improved ascites, and the chronic pancreatitis related to alcohol abuse." The examiner noted that "[t]here is nothing specific about his dyspnea. He denies any wheezing." A December 2011 VA examination report includes the examining doctor's opinion: "It is less likely than not that the veteran[']s current respiratory condition is causally or etiologically related to the veteran[']s military service or to an undiagnosed illness resulting from service in southwest Asia during the Gulf War." In supporting this opinion with an informed rationale, the examining physician cited examination findings and review of the claims-file, finding that "[t]he veteran has a history of alcoholic cirrhosis, polysubstance abuse including tobacco use, deconditioning, which are more likely the cause of his current respiratory symptoms." The VA examiner explained: "I have not been able to find documentation of chronic respiratory conditions while the veteran was in-service, other than acute pneumonia." (The Board observes that its own review of the record indicates that the Veteran's episode of acute pneumonia actually occurred after his military service.) Furthermore, the VA examiner found that "[w]hile the veteran notes becoming winded easily, there is no objective evidence to support a chronic respiratory condition or undiagnosed illness. Objective Pulmonary Function Testing is normal and actually improved from prior PFT testing." This VA examiner checked "No" to indicate finding that the Veteran had not ever been diagnosed with a chronic respiratory disease. This VA examiner conducted new PFT tests of the Veteran and found no diagnosable respiratory disability. The evidence shows that the Veteran has complained of respiratory symptoms (which have been variously assessed) during the pendency of the instant claim. The Veteran's STRs contain no suggestion of any respiratory complaints nor pertinent diagnoses of chronic respiratory disability during service, and the Veteran declined a separation medical examination in April 1992. Although the April 2010 VA examiner discusses that an item of PFT data is "suggestive" of "possible" early obstructive disease, neither the April 2010 VA respiratory examiner nor the December 2011 VA respiratory examiner found a confirmed diagnosable chronic respiratory disability in the Veteran. The December 2011 VA examiner found no objective evidence that the Veteran currently had any chronic respiratory disease, and that there had never been objective evidence that the Veteran had a chronic respiratory disease. That conclusion appears consistent with the record, which documents a medical history with varying suggestions (from respiratory testing periodically suggesting a restrictive or an obstructive respiratory impairment), but with such inconsistency and variation as to fail to clearly indicate any established chronic diagnosis. To the extent that prior medical reports at times suggested one form of respiratory impairment or another, the Board finds that the most recent April 2010 and December 2011 VA respiratory examination reports are most probative in showing that no chronic respiratory diagnosis is established by current findings or by review of the historical findings of record; these examiners have had the benefit of considering review of the complete respiratory health and testing history, to include the most recent respiratory testing results. Consequently, in the absence of evidence of a current respiratory disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board also observes that to any extent that evidence in this case may arguably raise a question of whether the Veteran has a chronic respiratory disability attributable to smoking tobacco during military service, such a theory could not result in a grant of service connection because for all claims filed after June 9, 1998, as here, governing law (38 U.S.C.A. § 1103) specifically prohibits service connection for a disability on the basis that it resulted from the use of tobacco products in service. The Veteran presents the theory of entitlement that his respiratory symptoms may be manifestations of an undiagnosed illness or a chronic multisymptom illness resulting from exposure to toxic substances in the Southwest Asia Theater of Operations during the Persian Gulf War. However, as noted by the April 2010 and December 2011 VA examiners, the Veteran neither exhibited objective indications of a chronic respiratory disability during his service nor has be exhibited confirmed objective indications of an undiagnosed respiratory disability (and especially not to a degree of 10 percent disabling or more) at any time; even any suggestions of possible chronic respiratory disability are expressed as attributable to known diagnoses and pathologies such as COPD. Consequently, service connection for a respiratory disorder under 38 C.F.R. § 3.317(b)(8) is not warranted. The Veteran is competent to describe any discernible respiratory symptoms without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, his statements asserting that such symptoms are manifestations of an undiagnosed illness or a chronic multisymptom illness are not competent evidence, as he is a layperson, and lacks the training to render medical diagnoses; this question is eminently medical in nature and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). The Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which contradicts the findings presented in the most probative evidence discussed above regarding the respiratory issue. The Board acknowledges that the record contains a quantity of other documents with some reference to respiratory complaints, including VA treatment records, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the findings drawn from the probative evidence discussed above. The additional evidence and information of record do not otherwise show that the Veteran has a chronic respiratory disability, neither as a manifestation of an undiagnosed illness nor as a confirmed diagnosed pathology. Furthermore, the additional evidence and information of record does not otherwise indicate that any suggestions or complaints of respiratory disability are etiologically linked to the Veteran's military service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for a respiratory disability, to include as due to an undiagnosed illness. Accordingly, it must be denied. Headache Disability The Veteran contends that he suffers from a chronic disability manifested by headaches that began around or soon after his separation in 1992, and which he believes are the result of an undiagnosed illness related to exposures during service in the Persian Gulf. The Veteran has not presented any contentions otherwise identifying in-service events pertinent to his claimed headache disability, and he has not articulated any contentions alleging that his claimed headache disability is a secondary consequence of a service-connected disability. While on active duty, the Veteran did not receive treatment for headaches. He hit his head in July 1989 and ruptured a blood vessel in his left eye. However, an examiner specifically noted no headaches (and no loss of consciousness or hematoma) associated with this incident. Rather, he noted only a localized, superficial scleral hemorrhage. The Veteran's STRs contain no suggestion of any headaches complaints or pertinent diagnoses during service, and the Veteran declined a separation medical examination in April 1992. Following discharge, in September 1999, the Veteran presented to University Medical Center with complaints of headaches, at which time a physician determined that the Veteran had a right convexity subdural hematoma, which given its size and lack of mass effect, did not require surgery. Days later, the Veteran's headaches became more severe and he began to experience disequilibrium and left-sided weakness. He then presented to a local facility, PHS Indian Hospital, for treatment. He reported that he had consumed two 12 packs in the last 24 hours, had experienced four seizures the prior evening, and had headaches. He indicated that he had no memory of a head injury. A CT scan of the head showed a right frontal subdural hematoma. This condition necessitated a transfer to University Medical Center, where the Veteran was hospitalized for a week and underwent surgery, specifically, a right craniotomy, to evacuate the hematoma. During follow-up visits, the Veteran reported improved, but not resolved, headaches, and additional seizures. Physicians prescribed, in part, medication to control his seizures. In November 1999, the Veteran returned to University Medical Center for treatment after he was lifting a heavy object and developed a severe headache. He subsequently had three generalized tonic clonic seizures. MRI revealed another right frontal subdural hematoma, for which the Veteran did not undergo surgery. Based on this finding, a physician ordered additional testing, including an electroencephalogram, which showed abnormalities confirming a seizure disorder. As well, a physician increased the Veteran's seizure medication. In January 2000, Lisa J. McClellan, M.D., noted the prior subdural hematoma evacuation and indicated that the Veteran was still complaining of difficulty with concentration and memory recall. She queried whether long-term neuro-rehab was necessary. On VA mental health consultation in October 2000, the Veteran reported a history of a head injury the previous year. On VA general medical examination conducted in March 2001, the Veteran reported a history of the September 1999 surgery and indicated that, on admission to the hospital in September 1999, a physician thought he had alcoholic withdrawal syndrome. The Veteran indicated that he was unaware of any trauma or injury to his head. The diagnosis was history of an acute subdural hematoma, September 1999, with negative history for trauma and no sequelae. Since the March 2001 examination, the Veteran has received VA and private treatment and undergone VA examinations for multiple conditions. During treatment visits and evaluations, no examiner noted the presence of a hematoma or any residual thereof. In March 2004, at St. Luke's Behavioral Health Center, one physician initially noted a history of such a condition and prior treatment therefor based on the Veteran's reported history. A week later, the same physician noted a stroke secondary to intracranial hemorrhage sustained during the Gulf War based on a different unclear history reported by the Veteran. In March 2004, the Veteran fell from a height. This incident necessitated extensive testing, including a CT scan of the head. This scan showed chronic atrophy appearance, no acute hemorrhage, and post-operative appearing changes in the right upper skull. In April 2004, the Veteran underwent a VA neurological disorder, miscellaneous examination, during which he reported that he was disabled as a result of the September 1999 surgery. He could not, however, identify any particular physical disability, which resulted from the surgery and that rendered him so. The examiner noted that the following facts were pertinent: the Veteran was given seizure medication postoperatively for prophylactic reasons; he was left neurologically intact postoperatively, but did in fact have a subdural hematoma; and he admitted that he had difficulty with alcohol. The examiner conducted a physical evaluation, confirmed that the record documented a subdural hematoma five years ago, and concluded that there was no evident neurologic residual of that hematoma. He indicated that the etiology of this condition is uncertain, but that the Veteran denied a head injury. Significantly, the Veteran's separate claim of entitlement to service connection for subdural hematoma has been denied by a final December 2009 Board decision. Service connection for subdural hematoma is not in effect, and thus any headaches that are simply a result of subdural hematoma do not warrant service connection in this case. The report of a May 1998 VA general medical examination reflects a complaint of headaches and includes a diagnosis of nonspecific intermittent headaches. It also includes a VA examiner's notation that, because he found no evidence of neurologic abnormalities, he would defer to the psychiatric consultant regarding whether any neurologic symptoms warranted a separate neurologic evaluation; the May 1998 VA psychiatric evaluation report shows a determination that a neuropsychological evaluation was not indicated at that time. The Veteran's written statements and January 2003 hearing testimony reflect his belief that his headaches result from active service. The VA and private treatment records show continued complaints of headaches with suggestions of various attribution, including possibly to an undiagnosed illness (in a September 1998 handwritten VA medical assessment notation), but also presented in connection with episodes of possible narcotic withdrawal, alcohol withdrawal, sinusitis, a psychiatric disorder, seizures, a subdural hematoma, and head surgery (right craniotomy). Reports of VA examinations reflect continued complaints of headaches. They include, in a March 2001 VA examination report, a diagnosis of "history of headaches which sound like muscle tension headaches" and a notation that the Veteran had a subdural hematoma five years prior with no neurologic residuals noted. The written lay statements from the Veteran's family members, acquaintance, and neighbor, received in December 2000, do not mention the Veteran's headaches. In January 2003 hearing testimony the Veteran's asserted that his headaches are related to his service in the Persian Gulf and that they first manifested in 1992, the year of his separation from service. The medical evidence shows continued complaints of headaches, but does not indicate that these headaches were initially manifested in, or are related to, service. Although there is a diagnosis of headaches secondary to an undiagnosed illness (in a VA doctor's September 1998 handwritten assessment notation), numerous subsequent assessments of the headaches attribute them to various known diagnoses, as discussed below. The evidence broadly attributes the Veteran's headaches to known diagnosed illnesses, including migraine headaches, post-traumatic headaches, and post-seizure headaches. The Board also observes that headaches, alone, do not establish that there is a chronic headache disability, and that the Veteran has also been assessed with generally non-specific headaches and muscle tension headaches, as discussed below. The Veteran was afforded VA examinations in May 1998, March 2001, and April 2004. Although the May 1998 VA examiner assessed the Veteran as having nonspecific intermittent headaches, there is no indication that he had reviewed the record, and he did not provide a medical opinion regarding the etiology of the headaches. Similarly, the March 2001 VA examiner listed his impression as a history of headaches that sounded like muscle tension headaches, but indicated that he did not review the claims file; nor did he discuss the etiology of the headaches. The April 2004 VA general medical examiner also noted that the Veteran had reported having headaches and indicated that he would be evaluated by a neurologist. However, the April 2004 VA neurology examiner simply noted the Veteran's complaints of headaches; there was no further discussion of the symptoms. The Board's December 2009 remand noted that the evidence did not include a medical opinion, based on a review of the record, addressing whether the Veteran's headaches are attributable to an undiagnosed illness or another disorder. The Board found that another VA examination and medical opinion were necessary to determine the nature and etiology of any/all headaches present. An April 2010 VA examination report, informed by examination of the Veteran and review of the claims-file, presents the examining doctor's opinion that the Veteran is diagnosed with "[h]eadaches, either migraine or non-migrainous, intermittent and of uncertain onset." The VA examiner commented that "[t]he cause of his headaches are not able to be determined. The neurological studies do not give evidence of a known structural cause for headaches." The VA examiner notes that the Veteran "has had a number of head injuries" that have occurred "[s]ince the military." The VA examiner remarks that "[a]n injury from a seizure is at least as likely as not (50/50) [to] have induced his subdural hematoma of 1999." The report explains that the VA examiner felt that the Veteran's headaches "may be migraine," and that the VA examiner sought to ask follow-up questions of the Veteran to investigate this possibility; however, the VA examiner "could not reach him by phone on 6/4/10 to complete the question on light or sound sensitivity." The VA examiner's analysis was further complicated by the fact that "[t]he history is limited because of his inability to remember when headaches seizures and memory loss began." The Board notes that, significantly, the April 2010 VA examination report's discussion of the uncertainty regarding the Veteran's headache pathology is attributed to an inability to obtain the complete pertinent facts with regard to symptomatology and history, rather than an attribution of symptomatology and history to a undiagnosed illness entity. The Board further observes that this April 2010 VA examination report's documentation of the details of medical history reported by the Veteran are confusing and inconsistent; the account of history in this report indicates that the Veteran was first aware of seizures and had an evacuation of a subdural hematoma in 1993 (which is not documented or referenced in the Veteran's substantial medical records dating back to 1993), but also indicates that his surgery for subdural hematoma took place in 1999 (which is documented). This April 2010 VA examination report presents the examiner's conclusion: "I cannot make a diagnosis of a specific entity of undiagnosed illness." The VA examiner explains: "In neurology understanding, many headache syndromes are of undetermined cause. However nearly all of those patients are not considered to have the military designation of an 'undiagnosed illness.'" The Board reads the report as finding that the Veteran's headache symptoms are attributable to a known medical diagnosis of either migrainous or non-migrainous intermittent headaches; although the specific classification could not be resolved in light of the absence of some key information, the VA examiner explained clearly his rationale for findings that the Veteran's headaches were not manifestations of an undiagnosed illness. The report of a December 2011 VA examination (with the final report signed in January 2012), informed by examination of the Veteran and review of the claims-file, presents the examining doctor's opinion that: "[i]t is less likely than not that the veteran[']s headaches are causally or etiologically related to the veteran[']s military service or to an undiagnosed illness resulting from service in southwest Asia during the Gulf War." In supporting this opinion with an informed rationale, the examining physician cited examination findings and review of the claims-file, finding "no objective evidence of headache diagnosis or treatment in the service treatment records," citing that "[t]he veteran experienced many events since he separated from the military that could [have] produced post traumatic or post seizure headaches," and that "[t]hese occasions would be more likely the cause of his current headache condition." The December 2011 VA examination report shows a clear and specific diagnosis of "Migraine" headaches, "including migraine variants." Also significantly, the December 2011 VA examination report shows that the Veteran's symptoms specifically include "Sensitivity to light" and "Sensitivity to sound," which are the two matters about which the prior April 2010 VA examiner sought to obtain information from the Veteran to resolve diagnostic uncertainty. The Veteran's current headaches are attributed to a known clinical diagnosis (migraine headaches along with post-traumatic and post-seizure headaches). Although a handwritten VA treatment record from September 1998 appears to suggest an assessment of undiagnosed illness involving headaches, no rationale or explanation is provided in that record, and numerous subsequent medical records, assessments, and opinions addressing the headache complaints differ from this suggestion. The Board notes that a July 1999 VA treatment report that appears to be from the same provider as authored the note suggesting headaches from undiagnosed illness (in September 1998) refers to an assessment of undiagnosed illness involving arthralgias and makes no mention of headaches. A number of medical reports before and after the 1998 assessment characterize the nature of the headaches in terms such as "nonspecific" or "muscle tension" or "migrainous" or "non-migrainous." With consideration of the difficulty inherent to specifying a particular cause of headache complaints (as explained in the record by the April 2010 VA examiner), the Board does not view the fact that the medical records express varying possible causes and uncertainty regarding the cause of the headache symptoms as persuasive evidence that the headaches are actually manifestations of undiagnosed illness. Rather, the Board views the impressions of various suspected causes of headache pathology as indications that the headaches can be attributed to known clinical diagnoses rather than the result of undiagnosed illness. The most probative and most recent detailed VA examination reports from April 2010 and December 2011 collectively explain that the Veteran's headache pathology is not attributable to an undiagnosed illness but, rather, one or more indicated diagnosable pathologies. Therefore, the claim of service connection for the headaches does not fall within the purview of the presumptive provisions of 38 C.F.R. § 3.317. The Veteran's STRs show no suggestion of any headache complaints at any time during his military service, including with reference to the documentation of his July 1989 head injury that was specifically noted to involve no complaints of headache. The Veteran's testimony in connection with this claim indicates that he experienced headaches in 1992, around the time of his separation from military service. However, even assuming that the Veteran experienced headaches around the time of his separation, there is no evidence of a chronic disability having manifest during service or proximately thereafter; the mere occurrence of headaches is not itself demonstration of a pertinent chronic disability. The Board observes that the Veteran's testimony has been somewhat variable and ambiguous, has not specifically described onset of headaches during service (as opposed to following separation in 1992), and the Veteran has expressed (including to the April 2010 VA examiner) that he has difficulty remembering the timing and details of his headache history. The recent confirmation of a diagnosis of migraine headaches (in the December 2011 VA examination report) involved specific details involving light sensitivity and sound sensitivity that the Veteran has not indicated began during or proximately following service, and the December 2011 VA examiner making the diagnoses indicated that the diagnosis began in the year 2010. With regard to any current headache diagnoses associated with trauma, seizures, or subdural hematoma, the Board notes that there is no indication in the evidence or the Veteran's contentions that such pathologies had onset during service. No seizures or subdural hematoma are shown during service (and service connection has been denied for subdural hematoma), and the only suggestion of in-service head trauma was shown in the service treatment records to involve no headache. The VA examiners in this case have been informed by review of the STRs including the July 1989 head injury and have found no link between any current diagnosis and that in-service event. Accordingly, service connection for a headache disorder on the basis that such disorder became manifest in service and persisted is not warranted. Postservice, the Veteran's headaches with features attributed to a chronic disability such as migraine, post-traumatic, and post-seizure headaches were first noted many years after separation. The most probative medical etiology opinions of record, those presented with a discussion of rationale and informed by review of the complete claims-file, indicate that the pertinent chronic diagnoses are unlikely linked to the Veteran's military service. In particular, the April 2010 and December 2011 VA examination reports are probative evidence in this matter. Because there is no comparably probative competent evidence to the contrary, they are persuasive. Specifically, while the Veteran may believe that his headaches are somehow related to his service, whether or not such an insidious process as headaches may, in the absence of an established continuity of symptoms of a diagnosed chronic disability, be related to a remote event(s) is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once again, it is noteworthy that the Veteran is a layperson with no demonstrated medical expertise. The Board notes that the most recent headache diagnoses feature post-traumatic and post-seizure pathologies, and the Board has considered that the Veteran had documented headache symptoms prior to the documented events involving the 1999 subdural hematoma and other head traumas. This fact does not contradict the finding that the Veteran's current headaches feature post-traumatic and post-seizure pathologies, but it does draw the Board's attention to the question of whether any aspect of the complex headache pathology which manifested prior to the most clearly shown post-service trauma and seizure problems may present a basis for service connection. The April 2010 VA examiner has explained that headaches are typically difficult to attribute to a single specific etiology and are nevertheless almost never manifestations of an 'undiagnosed illness' type of pathology. After the September 1998 VA assessment suggesting headaches linked to undiagnosed illness, the VA assessment of undiagnosed illness in 1999 was associated only with arthralgias (discussed in records as associated with joints) without discussion of headaches. A number of medical reports before and after the 1998 assessment characterize the nature of the headaches in terms such as "nonspecific" or "muscle tension" or "migrainous" or "non-migrainous," but without attribution to any Gulf War syndrome or undiagnosed illness. Again, with consideration of the difficulty inherent to specifying a particular cause of headache complaints (as explained in the record by the April 2010 VA examiner), the Board does not view the fact that the medical records express varying possible causes and uncertainty regarding the cause of the headache symptoms as persuasive evidence that the headaches are actually manifestations of undiagnosed illness. Rather, the Board views the impressions of various suspected causes of headache pathology as indications that the headaches can be attributed to known clinical diagnoses rather than the result of undiagnosed illness. The Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the headaches issue. The Board acknowledges that the claims file contains a quantity of other documents with some reference to headache complaints, including VA treatment records, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the findings drawn from the probative evidence discussed above. The additional evidence and information of record does not otherwise show that the Veteran had a chronic headache disability with onset or causation during military service, and the additional evidence and information of record does not otherwise show that the Veteran has a headache disability which cannot be attributed to a known medical diagnosis. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for headaches, to include as due to an undiagnosed illness. Accordingly, it must be denied. ORDER The appeal seeking service connection for a respiratory disability, to include as due to an undiagnosed illness, is denied. The appeal seeking service connection for headaches, to include as due to an undiagnosed illness, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs