Citation Nr: 1322432	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  09-06 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a back disorder.


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran had active duty for training from June to August 2006 and active duty from May 2007 to May 2008. 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2008 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (the RO). The VA RO in Phoenix, Arizona, currently has jurisdiction over the Veteran's claims file.


FINDING OF FACT

Myofascial thoracolumbar syndrome is attributable to service.


CONCLUSION OF LAW

Myofascial thoracolumbar syndrome was incurred in Gulf War service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.317 (2012)


REASONS AND BASES FOR FINDING AND CONCLUSION

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary.

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131.
 
Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(a).
 
Service connection may also be established for a chronic disability resulting from an undiagnosed illness which 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.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
 
The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1).  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).
 
A 'qualifying chronic disability' means a chronic disability resulting from an undiagnosed illness.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i).
 
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 six-month period will be considered chronic.  The six-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 chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.  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).
 
Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, signs or symptoms involving muscle pain or joint pain.  38 C.F.R. § 3.317(b).

The Veteran has appealed the denial of service connection for a back disorder.  We find that the evidence supports the claim.

The Veteran's application for benefits was dated while still in service.  His report (claim) that he had a back problem is competent and some evidence of in-service pathology.  Almost immediately after service, a VA examiner determined that the appellant had myofascial thoracolumbar syndrome.  This is evidence of current disability, but not underlying disease or injury.  See 38 U.S.C.A. § 1110.  However, the absence of underlying disease or injury is not fatal in the case of a Gulf War Veteran.

Here, we are presented with a Gulf War Veteran, credible in-service complaints of a back disorder (his claim), post service disability and no acceptable evidence of underlying disease or injury.  In essence, the appellant has an undiagnosed illness resulting in either muscle pain or joint pain.  Service connection for myofascial thoracolumbar syndrome is warranted.


ORDER

Service connection for myofascial thoracolumbar syndrome is granted.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs