Citation Nr: 21064483 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-22 018 DATE: October 20, 2021 ORDER Entitlement to service connection for muscle pain, multi-joint pain, involuntary muscle twitching, twitching of the eyes and face, and fatigue, previously claimed as Gulf War Syndrome, now diagnosed as hypovitaminosis D (a vitamin D deficiency) is denied. FINDING OF FACT A current diagnosis of hypovitaminosis D (a vitamin D deficiency) is not shown by the evidence of record, and has been specifically ruled out by clinical findings; the preponderance of the evidence also shows that the Veteran is not functionally impacted by any reported symptoms that could be attributed to such. CONCLUSION OF LAW The criteria for entitlement to service connection for muscle pain, multi-joint pain, involuntary muscle twitching, twitching of the eyes and face, and fatigue, previously claimed as Gulf War Syndrome, and now diagnosed as hypovitaminosis D (a vitamin D deficiency), have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1994 to December 2001, including service during the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. This matter has been before the Board on three prior occasions. First, in January 2015, when the Board remanded the Veteran's original claim for entitlement to service connection for Gulf War syndrome or medically unexplained chronic multi-symptom illness for additional development because the prior VA examination did not address all the Veteran's symptoms. Second, in November 2016, at which time the Board bi-furcated the Veteran's claim into two distinct claims, based on the findings of a May 2015 VA examination. The Board denied the issue of entitlement to service connection for Gulf War syndrome or medically unexplained chronic multi-symptom illness because the Veteran's symptoms had been subsequently associated with a vitamin D deficiency, and the Veteran's claim had been recharacterized as such. Finally, in August 2020, when this matter was remanded to determine whether the Veteran has a current clinical diagnosis of vitamin D deficiency, including whether in the absence of a presently diagnosed disability the Veteran has experienced functional impairment, which may qualify as a disability for VA purposes pursuant to Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The matter has now been returned to the Board for readjudication of the Veteran's claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a veteran must show: (1) the existence of a present 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, including resulting from 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, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See, 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a), (c). As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature. The Veteran does not allege, and the record does not suggest, that he has any of the listed diseases. Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of what are identified as medically unexplained chronic multi symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4), which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multi symptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, and claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61, 997 (Oct. 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of 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. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for muscle pain, multi-joint pain, involuntary muscle twitching, twitching of the eyes and face, and fatigue, previously claimed as Gulf War Syndrome, now diagnosed as hypovitaminosis D (a vitamin D deficiency) is denied. The Veteran contends that he has unexplained physical symptoms which were initially incorrectly attributed to Vitamin D deficiency, that has limited his ability to perform certain roles within IT services and management, and significantly decreased his ability to perform activities/hobbies he enjoys. See, July 2020 Form 9. See, October 2020 Correspondence. With regards to the first element of service connection, based on a March 2021 laboratory findings, and as part of the VA Nutritional Deficiencies in-person and records review examination completed in July 2021, the examiner reported that the Veteran does not have a diagnosis of vitamin D deficiency, and that he does not have any findings, signs or symptoms attributable to conditions or residuals caused by any other vitamin deficiency. The examiner specifically referenced the Veteran's July 2, 2018 vitamin D levels of 34, and as well as his March 29, 2021 vitamin D level of 33.5 ng/mL LabCorp testing results, explaining that Vitamin D deficiency can be ruled out, because a Vitamin B deficiency is defined as less than 20 ng/mL. The examiner further commented that the Veteran reported he was diagnosed with vitamin D deficiency in 2008 and was told that his muscle pain, multi-joint pain, involuntary muscle twitching was all due to vitamin D deficiency; he was given a vitamin D supplement, which he had been taking, but that his symptoms have remained the same. The Veteran has also acknowledged that he has subsequently taken several vitamin D tests which were all normal, even though he is still experiencing the same symptoms, which includes muscle pain, multi-joint pain, and involuntary muscle twitching. Further, the July 2021 examiner reported the following in explaining the Veteran's symptoms, notwithstanding his lack of Vitamin D deficiency diagnosis, including whether his symptoms results in functional impairment that impacts the Veteran's earning capacity or caused by his active military service: In the chart review, there were no service treatment records for complaints or treatment of vitamin d deficiency (avitaminosis ), veteran symptoms that was related to his vitamin d deficiency by the May 2015 VA examiner (muscle and joint pain, involuntary twitching, fatigue) results in functional impairment that impacts the veterans earning capacity was vague since veteran has underline condition relates to his SC PTSD that can manifest as muscle and joint pain, involuntary twitching, fatigue, based on medical evidence vitamin d deficiency present as osteomalacia(soft bones) in adults which is not reflective in veteran records, post service vitamin d levels on 09/12/2008 was 21.2 l ng/ml which was moderately low, the vit d levels was not low enough to cause subjective symptoms or objective findings of a deficiency, veteran was started on supplement, 02 July 2018 vit D levels 34 which therapeutic base on medical evidence there is no link between the veteran vitamin d deficiency which can arise if a person does not take in enough vitamin d or their skin has an impaired ability to synthesize it from the sun and sleep apnea which is pathophysiology caused by cyclical cessations or reductions of airflow, with or without any obstructions of the upper airway in the presence of an anatomically compromised, collapsible airway, the sleep-induced loss of compensatory tonic input to the upper airway dilator muscle motor neurons leads to collapse of the pharyngeal airway, the veteran vitamin d deficiency is a new separated condition not causally related to the veteran's sleep apnea, the veteran vitamin d deficiency is new separated condition not causally the veteran's claimed vitamin d deficiency (avitaminosis), is less likely than not (50 percent or greater probability) proximately due to or the result of the veteran's sleep apnea. The Board notes that the Veteran's current service-connected disabilities are PTSD (@ 50 percent from 4/29/2011; tenosynovitis - right wrist @10 percent from 12/13/2001; tenosynovitis - left wrist @10 percent as of 12/13/2001; talofibular ligament strain, left ankle @ 10% from 12/13/2001; talofibular ligament strain, right ankle @10% from 12/13/2001; patellofemoral syndrome, right knee @10% from 12/13/2001; patellofemoral syndrome, left knee @10% from 12/13/2001; migraines 0% from 12/13/2001; 10% from 01/03/2005, excluding PTSD, all granted on a presumptive basis due to his active duty service as a Gulf War Veteran. Of note, prior to this VA examination that was completed in July 2021, the Veteran submitted a statement (received October 27, 2020) to the Board, reporting that he has muscle and joint pain, fatigue, and involuntary muscle twitching that has limited his ability to perform various roles within IT Services and Management, as well as significantly reduced his ability to perform activities/hobbies which he once enjoyed. However, the Board also notes that during a September 2020 Certificate of Medical Examination physical for a prospective IT specialist job overseas that required physical agility, the Veteran reported that he could perform the job functions requiring heavy lifting (45 pounds and over), reaching above his shoulders, use of his fingers/both hands, both legs, including climbing. These statements directly contradict his subsequent statement to the Board. Although a medical waiver was sought, it was not for his reported symptoms related to this claim. Furthermore, notwithstanding these facts, the July 2021 examiner's report reflects that there is no functional impact associated with the Veteran's claim for vitamin D deficiency/symptoms. Consequently, as the preponderance of the evidence show that the Veteran does not have a clinically diagnosed Vitamin D deficiency, and his symptoms have been primarily attributed to his already service-connected PTSD disability for which he is already been compensated (service connection granted at 50 percent, effective April 29, 2011), the Board finds that there is no functional impairment associated with this condition under Saunders. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In short, notwithstanding a lack of Vitamin D deficiency diagnosis, the evidence of record also does not reflect that the Veteran has been functionally impacted by symptoms for which he has not already been compensated. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). That a condition or injury occurred in service alone is not enough; there must be a disability resulting from that condition or injury. Id., at 1332. In the absence of proof of a present disability there can be no valid claim. Boyer v. West, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also, Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Based on all of the foregoing, the Board finds that the Veteran does not have a current diagnosis to support his claim of vitamin D deficiency, and as such, he does not have a valid claim based on a known diagnosis. Furthermore, notwithstanding this fact, the preponderance of the evidence further reflects that the Veteran does not have functional impairment attributed to his symptoms. Therefore, service connection is not warranted, and the Veteran's claim must be denied. 38 U.S.C. § 5107(b). Given that the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Consequently, the Board cannot grant the Veteran's claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.