Citation Nr: 20005669 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 13-27 518 DATE: January 23, 2020 ORDER Entitlement to service connection for lupus, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is DENIED. Entitlement to service connection for a digestive disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and to include as secondary to nonsteroidal anti-inflammatory agents (NSAIDS) taken for low back pain, is DENIED. Entitlement to service connection for migraine headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is DENIED. Entitlement to service connection for a right foot disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is DENIED. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s currently diagnosed lupus erythematosis either began during, or was otherwise caused by, his military service. 2. The preponderance of the evidence is against a finding that the Veteran’s digestive disorder was incurred in or aggravated by service; additionally, his digestive disorder is not proximately due to, or aggravated by, any service-connected disability. 3. The weight of the evidence does not support a competently identified causal relationship between the Veteran’s current migraine headaches and military service. 4. The weight of the evidence is against a finding that the Veteran’s current right foot disorder either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for lupus erythematosis have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2018). 2. The criteria for service connection for a digestive disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2018). 3. The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 4 The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Army from September 1986 to February 1992. Subsequently, the Veteran served with the Florida Army National Guard and Army Reserve from 1992 to 2001, with various periods of Active Duty Training (ACDUTRA) and Inactive Duty Training (INACDUTRA). The Board notes that the Veteran’s substantive appeal also included an entitlement claim for service connection for a low back disorder. Upon further development, the agency of original jurisdiction (AOJ) subsequently granted the Veteran’s service connection claim for a lumbosacral strain in July 2019. Therefore, as this is a full grant of benefit sought, the issue related to the Veteran’s low back disability is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). As identified below, in January 2018, the Board considered the Veteran’s entitlement claims listed on the title page. At that time, the Board remanded the Veteran’s entitlement claims to the agency of original jurisdiction (AOJ) for additional development. The Board directed the AOJ to obtain the Veteran’s National Guard and Army Reserve medical and/or personnel records, any outstanding VA treatment records, and VA examination(s) that considered the probative evidence of record and was compliant with Persian Gulf illness protocols. The Board notes that strict compliance with remand directives is not an absolute necessity; however, substantial compliance is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Upon review of the resultant record, the Board notes that an exam report specific to Persian Gulf illnesses was not generated. However, the Board finds that the VA examiner(s) substantially complied with the January 2018 Board remand directives and/or directions. Specifically, the VA examiner(s) answered all of the Gulf War specific directives included in the January 2018 Board remand. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). SERVICE CONNECTION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Alternatively, VA regulations allow for a current disability to be service connected if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303 (b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability which cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness that became manifest either during active 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. 38 C.F.R. § 3.317 (a)(1)(i). See also 76 Fed. Reg. 81834 (Dec. 29, 2011). A Persian Gulf Veteran is one who served in the Southwest Asia theater of operations during the Persian Gulf War. Id. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d)(2). 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. §§ 3.317 (a)(2)-(5). Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C. §§ 1117, 1118. Essentially, these changes revised the term “chronic disability” to “qualifying chronic disability,” and involved an expanded definition of “qualifying chronic disability” to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317. 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). With claims based on undiagnosed illness, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to “undiagnosed illness” and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. See VAOPGCPREC 8-98 (Aug. 3, 1998). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran’s case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran’s case does not preclude compensation under § 3.317. Id. However, if the above referenced statutory presumptions are not met, a Veteran is not precluded from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That being the relevant, generalized law, applicable to the Veteran’s claims, the Board finds that the evidence does not support or warrant a grant of entitlement to service connection for lupus, a digestive disorder, migraine headaches, or a right foot disorder. Before assessing the merits of each individual claim, the board finds that the Veteran is a “Persian Gulf Veteran” for VA compensation purposes. 38 U.S.C. § 1117. The Veteran served as a member of the United States Army, with active duty service during the Persian Gulf War. The Veteran’s DD214 confirms that he is in receipt of the Southwest Asia Service Medal. As such, the Veteran is considered a Persian Gulf Veteran. Despite being a Persian Gulf Veteran, the Board finds that the Veteran’s claimed disabilities are all attributable to known clinical diagnoses; and, therefore, the Veteran is not entitled to an award based upon the presumptions as outlined in 38 C.F.R. § 3.317. Furthermore, and as will be discussed in greater detail below, the Board finds the Veteran is not entitled to an award of direct and/or secondary service connection for the four claims identified on the title page. 1. Entitlement to service connection for lupus, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. In April 2010, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated an entitlement claim for service connection for lupus. Again, entitlement to direct service connection requires: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. In March 1993, the Veteran underwent a National Guard enlistment examination. At that time, the Veteran denied any skin diseases. All findings during the enlistment examination were normal. In a May 1993 VA examination, the Veteran complained of chronic nasal stuffiness and frequent clearing of his throat. He had a history of having coughed up blood on one occasion with a severe upper respiratory infection. Upon examination, there were no significant abnormalities in the nose or throat. In April 2010, the Veteran’s treatment notations from Flagler Family Medicine and Wellness were associated with the claims file. Therein, it was reported that the Veteran currently demonstrates lupus and alopecia. In August 2003, the Veteran denied new skin lesions, rash or non-healing areas. The medical records indicate that the Veteran displayed bald spots on his head. After deliberate review, the Board notes that the Veteran’s treatment records are devoid of a notation that would support the in-service incurrence of a current lupus disability. In August 2010, a VA provider that addressed the nature and etiology of any currently endured lupus disorder. At that time, the VA provider noted a diagnosis for systemic lupus erythematosus. The VA provider reported that, “(t)here is no evidence of the veteran having lupus erythematosus in the service medical records. It is unlikely that lupus erythematosus is a result of service in the military or exposures in the Persian Gulf War. Lupus erythematosus is not a condition conceded as a result of Gulf War service.” In December 2010, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran posited that, “I was diagnosed with this disease after separating from the military and have be seen by primary care physicians and veterans affairs physicians, and this is all documented.” In July 2013, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Therein, an August 2010 preventive medicine education note showed a diagnosis of lupus with 3 skin lesions to scalp. In October 2010, a review of medical records revealed a confirmed diagnosis of discoid lupus erythematosus after a biopsy of the Veteran’s scalp. In July 2014, February 2018, and August 2019, the Veteran’s service treatment records (STRs) were associated with the claims file. The Veteran’s active duty STRs, dated from 1986 to 1992, are negative for any complaint, treatment, or diagnosis of a lupus disorder. The STRs do show treatment for frequent cold symptoms. Additionally, a December 1990 treatment note identifies three painful blisters on the left side cheek. At that time, the Army provider assessed chancre sores. In September 2016, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that he was first diagnosed with lupus in 2006. The Veteran testified that he currently endures hair loss, but he testified that his head was shaved at that time. The Veteran averred that his lupus should be service connected because, “I wasn’t diagnosed. Um, even coming into the military, you know, there was no, no issues with it. I mean, I was a healthy 19 year old.” The Board observes that the Veteran is competent to identify the symptoms that accompany his current lupus disorder. However, the etiology of the lupus erythematosis currently endured by the Veteran simply falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 (Fed. Cir. 2007) n. 4 (lay persons not competent to diagnose cancer). In January 2018, the Board considered the Veteran’s entitlement claim for service connection for lupus. At that time, the Board remanded the Veteran’s entitlement claim to the agency of original jurisdiction (AOJ) for additional development. The Board directed the AOJ to obtain the Veteran’s National Guard and Army Reserve medical and/or personnel records, any outstanding VA treatment records, and a VA examination that considered the probative evidence of record and was fully compliant with Persian Gulf illness protocols. In February 2018, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Throughout the records, a current diagnosis for Lupus Erythematosus, Discoid was identified. After deliberate review, the Board notes that the records are a devoid of a notation that addresses or identifies the etiology of the Veteran’s Lupus. In April 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured systemic lupus erythematosus. The VA provider reported a 2006 diagnosis for discoid lupus erythematosus. The Veteran supplied the following medical history: “he was diagnosed with lupus in 2002-2003, when he had insurance. States biopsy of scalp was performed and positive for discoid lupus. States he couldn't afford treatment at that time but states treatment was recommended. Veteran states he has ‘skin issues’ and irritation to scalp, legs and backs. States he keeps head shaved because it ‘itches and flakes up’. . . . States he will get rashes that pop up ‘often’ to legs and back 1-2 times a week that last 2-3 days. Describes as ‘irritation’. States he will occasionally use calamine lotion which helps with itching.” The VA provider opined that, “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA provider supplied the following rationale: “Veteran diagnosed with discoid lupus erythematosus (DLE) with findings on today's exam and review of Veteran's available claims file. Veteran's DLE diagnosis is a diagnoseable chronic disease with a clear and specific etiology and diagnosis. Veteran's DLE is less likely as not (i.e., 50 percent or more probable) related to Veteran's active service from 1986 to 1992, including the assumed environmental Persian Gulf hazards. There is no objective evidence in Veteran's available claims file linking his DLE diagnosis and active duty service. Veteran's treatment for frequent cold symptoms does not provide support for etiology of DLE. DLE is chronic condition that mostly affects the skin. Most patient's with DLE do not have significant systemic disease. Additionally, etiology of DLE is multi-factorial including genetic and environmental factor such as ultraviolet radiation, medications and cigarette smoking. Medical literature supports this.” In June 2019, a Primary Care Note was generated at the St. Augustine VA Clinic. Relevant to this Board analysis, the VA provider reported “Lupus Erythematosus-discoid; no treatment at present.” In August 2019, a portion of the Veteran’s treatment records (STRs) was associated with the claims file. Therein, during a March 1993 enlistment physical, the provider reported normal skin, lymphatic functions. The provider did not note a current diagnosis for lupus. The Board finds that the Veteran currently maintains a diagnosis for discoid lupus erythematosus. Consequently, the first requisite element for entitlement to service connection has been substantiated. See Shedden, 381 F.3d at 1167. After deliberate review of the claims file, the Board does not find evidence to support an in-service incurrence of lupus. Moreover, the claims file is devoid of a competent nexus between the Veteran’s current lupus and any in-service event, injury and/or illness. Therefore, the second and third requisite elements for entitlement to direct service connection have not been substantiated. See id. To the extent that the Veteran contends that service connection for lupus as a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, the Board observes that the Veteran’s symptoms have been attributed to a known diagnosis of lupus. Accordingly, service connection based on 38 C.F.R. § 3.317 is not warranted. Further, there is no competent evidence indicating that the Veteran’s lupus manifested to a compensable degree within one year of his discharge from active duty. Accordingly, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s lupus erythematosus entitlement claim. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for lupus erythematosus must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to service connection for a digestive disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, and to include as secondary to nonsteroidal anti-inflammatory agents (NSAIDS) taken for low back pain, is denied. In February 2010 the Veteran submitted a VA Form 21-4138. As explained in the January 2018 Board remand, this VA Form re-opened the previous final denial of the claim for entitlement to service connection for a digestive disorder. Again, establishing direct service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In May 1993, the Veteran underwent a VA examination. At that time, the Veteran reported anorexia beginning in October 1990, during in the Persian Gulf. The Veteran also reported frequent indigestion, heartburn, and episodes of diarrhea since that time. The VA provider’s assessment was gastritis, probably secondary to non-steroidal anti-inflammatory drug therapy. The Veteran was advised to stop Ibuprofen to see if his GI symptoms improve with Aspirin or Tylenol. In April 2010, the Veteran’s treatment notations from Flagler Family Medicine and Wellness were associated with the claims file. In July 2003, under reported GI symptoms, the provider noted no abdominal pain, no constipation, no diarrhea, no nausea, no vomiting, no rectal bleeding, and no melena. In an August 2003, the Veteran denied nausea, reflux, change in bowel habits, or melena. Therein, the Veteran repeatedly denied symptomatology for nausea or vomiting. After deliberate review, the Board notes that the Veteran’s treatment records are devoid of a notation that would support the in-service incurrence of a current digestive disorder. In August 2010, a VA provider that addressed the nature and etiology of any currently endured digestive disorder. At that time, the VA provider noted that, “Review of service medical records reveals no history of gastritis. Review of the claims file reveals no history of gastritis.” The VA provider reported that, “to resolve the question of whether or not gastritis was result of military service would require that I resort to mere speculation.” In December 2010, the Veteran submitted a NOD. Therein, the Veteran posited that, “have had this disorder since separating from the military, but have not yet to be treated for it.” In July 2013, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Therein, a May 2012 VA Nutrition Consult revealed no nausea, no vomiting, no diarrhea, and/or no constipation. An August 2010 Preventive Medicine Education Note reported a bowel problem. In August 2012, a Primary Care Note was generated. At that time, the Veteran reported that, “he’s had loose stools since 1992 when he service and the more like water and that may occur 4-5 times per day and he has seen blood twice he’s had this for 20 years and has not changed in the past one year . . ..” In July 2014, February 2018, and August 2019, the Veteran’s service treatment records (STRs) were associated with the claims file. The Veteran’s active duty STRs, for the period between September 1986 and February 1992, are devoid for any complaint, treatment, or diagnosis of a digestive disorder. After review of the Veteran’s active- and in-active duty STRs, the Board finds that they are devoid of a gastritis diagnosis. In September 2016, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that he was diagnosed with gastritis three months after his deployment to Saudi Arabia. The Veteran testified that Army providers prescribed an antacid, i.e. Pepto Bismol to calm the stomach. The Veteran testified that stomach issues developed in Desert Storm / Desert Shield. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159 (a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). In January 2018, the Board considered the Veteran’s entitlement claim for service connection for a digestive disorder. At that time, the Board remanded the Veteran’s entitlement claim to the AOJ for additional development. The Board directed the AOJ to obtain the Veteran’s National Guard and Army Reserve medical and/or personnel records, any outstanding VA treatment records, and a VA examination that considered the probative evidence of record and was fully compliant with Persian Gulf illness protocols. In February 2018, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Throughout the records, a current diagnosis for chronic diarrhea was identified. After deliberate review, the Board notes that the records are a devoid of a notation that addresses or identifies the etiology of the Veteran’s chronic diarrhea. In April 2019, the Veteran underwent a VA examination that considered the nature of any currently endured esophageal conditions. The VA provider noted that the Veteran maintained a diagnosis of chronic diarrhea. At that time, the Veteran reported that, “symptoms of diarrhea and upset stomach started first day being deployed in Saudi Arabia in 1991. States it doesn’t make a difference what he eat or drinks, he always has diarrhea. States he always feels like he has an upset stomach. States he noted one episode of bright red blood in stool a couple of months ago but denies seeking medical attention or re-occurrence since.” The Veteran identified the following current symptoms: “Veteran states he always has loose stools. States he has loose stools at least 6 times a day. Denies current treatment. Veteran states he remembers given stool sample but can't recall if he has had any other diagnostic testing.” The Board observes that the Veteran is competent to identify the symptoms that have accompanied his chronic diarrhea. However, the etiology of the chronic diarrhea currently endured by the Veteran simply falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733. In April 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured digestive disorder. The VA provider noted that the Veteran maintained a diagnosis for chronic diarrhea. The VA provider opined that, “The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA provider supplied the following rationale: “Veteran’s chronic diarrhea is a diagnoseable chronic multi-symptom illness with a partially explained etiology. Veteran’s chronic diarrhea is less likely as not related to Veteran’s active service from 1986 to 1992, including the assumed environmental Persian Gulf hazards. There is no objective evidence in Veteran’s available claims file of a diagnosis of a digestive/GI disorder or any digestive complaints during active duty service. Veteran’s claims file notes reports of ‘loose stools since 1992’ on VA exam dated 8/2012. Veteran was seen for follow up 2 years later and VA exam dated 7/2014 states Veteran never followed up on colonoscopy and that ‘stools for o&v, parasites’ were negative. Claims file also noted chronic diarrhea in problem list dated 9/11/2015. Additionally, claims file notes diagnosis of gastritis, probably secondary to NSAIDS taken for low back pain on VA exam dated 5/1993. However, I could not confirm diagnosis of gastritis as Veteran’s subjective history on today’s exam is inconsistent with a gastritis diagnosis (see medical literature below). Furthermore, Veteran lacks objective diagnostic testing, such as an Upper GI Endoscopy to confirm a gastritis diagnosis. He also lacks evidence of a currently diagnosed digestive disorder with current treatment.” Additionally, the VA provider reported that, “chronic diarrhea diagnosis is less likely as not (i.e., 50 percent or more probable) caused by, proximately due to, or the result of NSAIDs taken for low backpain. Chronic diarrhea causes are generally due to infection, intestinal disorders or from antibiotic or laxative use (see medical literature below). Veteran’s claims file notes diagnosis of gastritis, probably secondary to NSAIDS taken for low back pain on VA exam dated 5/1993. However, I could not confirm diagnosis of gastritis as Veteran’s subjective history on today’s exam is inconsistent with a gastritis diagnosis (see medical literature below). Furthermore, Veteran lacks objective diagnostic testing, such as an Upper GI Endoscopy to confirm a gastritis diagnosis.” The VA provider reported that, “chronic diarrhea diagnosis is less likely as not (i.e., 50 percent or more probable) aggravated by or worsened by NSAIDs taken for low back pain. Although chronic NSAID use can lead to side effects of diarrhea, there is no objective evidence on today’s exam or in Veteran’s claims file that chronic diarrhea has been aggravated by chronic NSAID use. Veteran did not report any increase in diarrhea from taking OTC Advil for his low back pain. Although, Veteran’s claims file notes diagnosis of gastritis, probably secondary to NSAIDS taken for low back pain on VA exam dated 5/1993, there is no other objective medical evidence to support this diagnosis/conclusion.” In June 2019, a Primary Care Note was generated at the St. Augustine VA Clinic. Relevant to this Board analysis, the VA provider reported a history of chronic diarrhea. In August 2019, a portion of the Veteran’s treatment records (STRs) was associated with the claims file. Therein, during a March 1993 Army National Guard enlistment physical, the provider reported a normal G-U symptom. The military provider did not note a current diagnosis for a digestive disorder. The Board finds that the Veteran maintains a current diagnosis for chronic diarrhea. Consequently, the first requisite elements for direct and secondary service connection have been substantiated. See Shedden, 381 F.3d at 1167; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Veteran is service-connected for a lumbosacral strain, effective March 29, 1993. Consequently, the second element of a secondary service-connection claim is also satisfied. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. However, the Board concludes that preponderance of the competent probative evidence within the claims does not substantiate a nexus between the Veteran’s chronic diarrhea and active-duty military service or the service-connected lumbosacral strain. See Shedden, 381 F.3d at 1167; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. To the extent that the Veteran contends that service connection for a digestive disorder as a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, the Board observes that the Veteran’s symptoms have been attributed to a known diagnosis of chronic diarrhea with a partially explained etiology. Accordingly, service connection based on 38 C.F.R. § 3.317 is not warranted. Further, deliberate Board review of the Veteran’s STRs does not reveal a diagnosis for, or treatment of, chronic diarrhea and/or a digestive disorder during the Veteran’s active duty in the United States Army. The competent medical evidence reflects that the Veteran did not demonstrate symptoms attributable to a gastric disorder during the March 1993 Army National Guard enlistment physical. Thus, this lack of symptoms in March 1993 weighs heavily against the Veteran’s contentions that he has experienced diarrhea consistently since service. Accordingly, the Board finds his contentions regarding an onset of symptoms during his active military service are not credible. The May 1993 medical assessment for gastritis occurred 15 months after the Veteran separated from active duty in the United States Army. Accordingly, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s digestive disorder entitlement claim. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to direct and secondary service connection for a digestive disorder must be denied, because the preponderance of the evidence weighs against his claim. 3. Entitlement to service connection for migraine headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied. In February 2010 the Veteran submitted a VA Form 21-4138. As explained in the January 2018 Board remand, the Veteran’s VA Form re-opened the previous final denial of the claim for entitlement to service connection for headaches. Again, establishing direct service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. In April 1993, the Veteran underwent a VA-administered neurological examination. At that time, the Veteran complained of intermittent bitemporal headaches approximately every other day since returning from Saudi Arabia in September 1991. The headaches were of a constant pressure type pain and are relieved with Ibuprofen. The VA examiner concluded that the Veteran’s headaches were most consistent with intermittent muscle contraction. The provider reported a normal neurological examination. The VA examiner suggested that the Veteran continue with the Ibuprofen. The VA examiner added that he found no evidence of a neurological disability. In April 2010, the Veteran’s treatment notations from Flagler Family Medicine and Wellness were associated with the claims file. In August 2003, the Veteran denied any new or unusual headaches. After deliberate review, the Board notes that the Veteran’s treatment records are devoid of a notation that would support the in-service incurrence of a current headache disability. In June 2010, the Veteran wrote the United States House of Representatives. At that time, the Veteran posited that, “I have . . . a serious foot condition that wears on me daily, and I’ve had severe migraines ever since I returned back from the Gulf War.” In August 2010, a VA provider that addressed the nature and etiology of any currently endured migraine headache disorder. At that time, the Veteran reported that, “he has developed chronic headaches in recent years.” The VA provider opined that, “there is no objective evidence in the service medical records of the veteran having had headaches. There is no objective evidence of the veteran having headaches within the year or years immediately following military service. Headaches in my opinion are not likely due to military service.” In December 2010, the Veteran submitted a NOD. Therein, the Veteran posited that, “had this disorder since separating from the military, but have not yet to be treated for it. I have been seen by my primary care physician several times on this, but was treated with aspirin and motrin.” The Board observes that the Veteran is competent to identify the symptoms that have accompanied his headaches. However, the etiology of the headaches currently endured by the Veteran simply falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733. In July 2013, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Therein, in October and November 2010, the Veteran complained of chronic migraine headaches. In July 2014, February 2018, and August 2019, the Veteran’s service treatment records (STRs) were associated with the claims file. The Veteran’s active duty STRs, dated from 1986 to 1992, are negative for any complaint, treatment, or diagnosis of a headache disorder. In September 2016, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that headaches began after an incident with an overturned field vehicle. The Veteran testified that he was prescribed aspirin for headaches more than 20 times in the military. The Veteran testified that he self-treated headaches with over-the-counter medications after separation from the military. The Veteran testified that he currently endures headaches two or three times each week. In January 2018, the Board considered the Veteran’s entitlement claim for service connection for headaches. At that time, the Board remanded the Veteran’s entitlement claim to the AOJ for additional development. The Board directed the AOJ to obtain the Veteran’s National Guard and Army Reserve medical and/or personnel records, any outstanding VA treatment records, and a VA examination that considered the probative evidence of record and was fully compliant with Persian Gulf illness protocols. In April 2019, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured headaches. The VA provider reported a diagnosis for tension headaches. The Veteran reported that, “headache started after coming back from Saudi Arabia. States loud noises trigger headaches. Describes as a discomfort. States if he doesn't take pain reliever that symptoms get worse and ‘feel like a migraine’. States he will try to lay down after taking OTC pain medication. States he tries to prevent headaches/migraines, ‘doesn't let pain get that far’. States he gets headaches about twice a week.” The Veteran reported the following symptoms: pain on both sides of head, nausea, and sensitivity to sound. The VA provider opined that, “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The VA provider supplied the following rationale: “Veteran diagnosed with chronic tension headaches with findings on today's exam and review of Veteran's available claims file. Veteran's chronic tension headaches is a disease with a clear and specific etiology and diagnosis. Veteran's chronic tension headaches is less likely as not related to the Veteran's active service from 1986 to 1992, including the documented in-service January 1991 MVA, and including the assumed environmental Persian Gulf hazards. Veteran's available claims file is negative for any headache complaints or diagnosis/treatment for a headache disorder. It is noted on VA exam dated 5/1993, after active duty service, that Veteran complained of chronic/frequent headaches that date back to 1990 while in Saudi Arabia. Veteran does not associate headaches with MVA accident in 1991 in his subjective history. Veteran was diagnosed with muscle contraction headaches. This diagnosis is also noted in a neurological exam dated 4/30/1993 (a muscle contraction headache falls in the same group as tension headaches). Veteran's diagnosis of muscle contraction headache was made after his separation from active duty service. Additionally, Veteran lacks any current or chronic headache diagnosis/treatment since his evaluation in 1993. Claims file does note chief complaint of chronic migraine headache in 2010, however, complaints are subjective with no evidence of assessment and treatment for migraine headache.” In August 2019, a portion of the Veteran’s treatment records (STRs) was associated with the claims file. During a March 1993 Army National Guard enlistment physical, the provider reported normal neurologic functions. The provider did not note a current diagnosis for headaches. In March 1995, it was reported that the Veteran complained of headaches. The Board finds that the Veteran currently maintains a diagnosis for tension headaches. Consequently, the first requisite element for entitlement to service connection has been substantiated. See Shedden, 381 F.3d at 1167. After deliberate review, the Board finds that the claims file is devoid of a competently causal relationship between the Veteran’s tension headaches and any in-service event, injury and/or illness. Therefore, the third requisite element for entitlement to direct service connection has not been substantiated. See id. To the extent that the Veteran contends that service connection for migraine headaches as a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, the Board observes that the Veteran’s symptoms have been attributed to a known diagnosis of tension headaches. Accordingly, service connection based on 38 C.F.R. § 3.317 is not warranted. Deliberate Board review of the Veteran’s STRs does not reveal a diagnosis for, or treatment of, headaches during active duty in the United States Army. Again, the Board notes that the Veteran is competent to report the occurrence of headaches. However, the Board concludes that the Veteran’s reports of headaches during active duty, to include after returning from Saudi Arabia in September 1991, are not credible because they are conflicting and/or inconsistent with the contemporaneous medical treatment records. The Board notes that the April 1993 medical assessment for intermittent muscle contraction headaches occurred 14 months after the Veteran separated from active duty in the United States Army. Accordingly, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s migraine headache entitlement claim. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for migraine headaches must be denied, because the preponderance of the evidence weighs against his claim. 4. Entitlement to service connection for a right foot disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. In April 2010, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated an entitlement claim for service a foot disorder. Again, establishing direct service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1167. In a March 1993 National Guard report of medical history, the Veteran denied any foot trouble, swollen or painful joints, or skin problems. Moreover, all lower extremity findings at the March 1993 National Guard examination were normal. In April 2010, the Veteran’s treatment notations from Flagler Family Medicine and Wellness were associated with the claims file. The records dated throughout 2007 document treatment for right foot calluses. The initial January 2007 treatment report recorded an increased callus formation of the right plantar foot during the preceding the two-month period. After January 2007 X-rays of the right foot, there was no radiographic foreign bodies found, no fractures or dislocation, and no significant osseous abnormality identified. After deliberate review, the Board notes that the Veteran’s treatment records are devoid of a notation that would support the in-service incurrence of a current right foot disorder. In June 2010, the Veteran wrote the United States House of Representatives. At that time, the Veteran posited that, “I have . . . a serious foot condition that wears on me daily, and I’ve had severe migraines ever since I returned back from the Gulf War.” In December 2010, the Veteran submitted a NOD. Therein, the Veteran posited that, “had this issue examined and looked at by Compensation and Benefits physician at the Regional Clinic . . . but that physician examined the (wrong) area to be compensation and benefits claim was coming from.” In July 2013, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Therein, in a November 2010 VA Podiatry Consult note, a complaint was recorded for painful calluses on the right foot “for several years.” The Veteran reported that he filed the calluses down with a sharp instrument at home, which lasts about two months. The VA provider assessed pes planus and painful right foot callus. The provider discussed possible etiologies, including previous puncture causing hyperkeratotic scar, plantar flexed/hypertrophic met head, parakeratosis, or retained foreign body (not radio-opaque.) In July 2014, February 2018, and August 2019, the Veteran’s service treatment records (STRs) were associated with the claims file. The Veteran’s active duty STRs, dated from 1986 to 1992, are negative for any complaint, treatment, or diagnosis of a right foot disorder. In September 2016, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Veteran testified that the wear of jungle and tiger boots in Saudi Arabia “crunched my foot to the point where there’s now . . . it’s almost like a callus, but it’s not a callus.” The Board observes that the Veteran is competent to identify the symptoms that have accompanied his right foot disorder. However, the etiology of the right foot disorder currently endured by the Veteran simply falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733. In January 2018, the Board considered the Veteran’s entitlement claim for service connection for a right foot disorder. At that time, the Board remanded the Veteran’s entitlement claim to the AOJ for additional development. The Board directed the AOJ to obtain the Veteran’s National Guard and Army Reserve medical and/or personnel records, any outstanding VA treatment records, and a VA examination that considered the probative evidence of record and was fully compliant with Persian Gulf illness protocols. In February 2018, the Veteran’s treatment records from the St. Augustine CBOC were associated with the claims file. Throughout the records, a current diagnosis for right foot pain and callus were identified. After deliberate review, the Board notes that the records are a devoid of a notation that addresses or identifies the etiology of the Veteran’s right foot pain and/or callus. In April 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured foot conditions. The VA provider a diagnosis for a right foot plantar callus, 4th toe. The Veteran reported that, “he started treatment sometime in 2003-2004. States he told podiatrist that he had stepped on something in Saudi Arabia in 1991. States foreign object ‘must of broke off’ in right foot. States he had treatment to remove callus. States treatment was in 2003-2004. States surgery was recommended but he declined. States he did callus treatment for 3-4 years.” The Veteran also reported that, “he scarring to right foot. States he ‘can't put a whole bunch of pressure’ but states he can ‘can walk proper’, and states ‘foot is fine’. Veteran states he avoids prolonged standing and walking and no longer runs. States he will sit and take rest.” The VA provider reported that, “callus noted to right plantar surface, 4th toe. No objective evidence of tenderness/pain on palpation. Gait was normal with no functional loss noted due to right foot callus.” The VA provider opined that, “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, even or illness.” The VA provider supplied the following rationale: “Veteran diagnosed with right foot plantar callus, 4th toe with findings on today's exam and review of Veteran's available claims file. Veteran's right foot callus is a disease with a clear and specific etiology and diagnosis. Veteran's right foot callus is less likely as not (i.e., 50 percent or more probable) related to Veteran's active service from 1986 to 1992, including having to wear tight boots while in-service, and including the assumed environmental Persian Gulf hazards. There is no objective evidence in Veteran's available claims file of a diagnosis of right foot callus or any right foot complaints during active duty service. Veteran's claims file does note right complaints in 2007. X-ray report dated 1/30/2007 of right foot was negative and indication states ‘possible foreign body in plantar surface of the fourth toe’. Additionally, right foot complaints also noted in 4/2012 in podiatry note. Veteran diagnosed with painful callus right foot and underwent ‘pare hyperkeratosis right foot with scalpel’. Assessment and treatment for right foot callus noted many years after Veteran’s active duty service with no objective evidence linking callus to active duty service.” In August 2019, a portion of the Veteran’s treatment records (STRs) was associated with the claims file. Therein, during a March 1993 enlistment physical, the provider reported normal feet. The provider did not note a current diagnosis for a right foot disorder. The Board finds that the Veteran currently maintains a diagnosis for right foot plantar callus, 4th toe. Consequently, the first requisite element for entitlement to service connection has been substantiated. See Shedden, 381 F.3d at 1167. After deliberate review, the Board finds that the claims file is devoid of a competently causal relationship between the Veteran’s right foot plantar callus and any in-service event, injury and/or illness. Therefore, the third requisite element for entitlement to direct service connection has not been substantiated. See id. To the extent that the Veteran contends that service connection for a right foot disorder as a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317, the Board observes that the Veteran’s symptoms have been attributed to a known diagnosis of right foot plantar callus, 4th toe. Accordingly, service connection based on 38 C.F.R. § 3.317 is not warranted. Further, there is no competent evidence indicating that the Veteran’s right foot plantar callus, 4th toe manifested to a compensable degree within one year of his discharge from active duty. Accordingly, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s right foot disorder entitlement claim. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim of entitlement to service connection for a right foot disorder must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.