Citation Nr: 21066494 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-27 677 DATE: November 1, 2021 ORDER Entitlement to service connection for osteoporosis is denied. Entitlement to service connection for osteoarthritis is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of osteoporosis at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that osteoarthritis and mild degenerative disc disease began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for osteoporosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1988 to May 1989 and from January 1991 to September 1991. In May 2021, the Board remanded the above issues for additional development, specifically to obtain additional VA opinions. These opinions were furnished in June 2021. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 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; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be presumed for Persian Gulf Veterans' undiagnosed illnesses, medically unexplained chronic multisymptom illnesses, and any diagnosed illness that the Secretary of VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317 (2018). A 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 no later than December 31, 2021, 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) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms such as: (1) chronic fatigue syndrome (CFS); (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2)(i). Therefore, 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 CFS, 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, 2021; and (4) that the symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, 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 (2004). Further, lay persons 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 an injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be established under the specific provisions applicable to Persian Gulf War Veterans. A Persian Gulf veteran is 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(e)(1) (2018). The Southwest Asia Theater of operations refers to 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(e)(2). Initially, the Board notes that the Veteran had service in Southwest Asia during the applicable period, and meets the definition of a Persian Gulf War veteran, and the provisions of section 3.317 are applicable. However, the Board notes that the Veteran is seeking service connection for diagnosable conditions, namely osteoporosis and osteoarthritis. Therefore, service connection for osteoporosis and osteoarthritis cannot be granted on a presumptive basis. The Board will then consider below whether the Veteran's service connection claims may be granted on another basis. 1. Entitlement to service connection for osteoporosis is denied. The Veteran seeks entitlement to service connection for osteoporosis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of and has not had osteoporosis one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to a diagnosis, in May 2019, the VA examiner the examiner found that there was no objective evidence of osteopenia at the lumbar spine, nor was there evidence of osteoporosis at the elbow joint or knees. In the June 2021 VA examination, the VA examiner noted that the Veteran had a diagnosis of a right rib fracture for which she is already service-connected. As to whether the Veteran has a diagnosis of osteoporosis, the June 2021 VA examiner found no evidence of osteoporosis. The examiner acknowledged that the April 2014 progress note indicated that the Veteran had a Vitamin D deficiency, which puts her at risk for osteoporosis. The examiner specified that the note did not state that the Veteran had osteoporosis. Additionally, in the June 2021 VA examination, the Veteran reported that she last had a study for osteoporosis done many years ago, and she does not recall the study being positive for osteoporosis. She also reported that she is not under pharmaceutical treatment for osteoporosis. The Board finds the May 2019 and June 2021 opinions as to a diagnosis of osteoporosis, taken together, probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran believes that her joint weakness is due to an undiagnosed illness for which service connection may be presumed, the Board notes that the Veteran is already service connected for conditions related to weakened muscles, such as cervical myositis, lumbar myositis, and chronic costochondritis. The Board notes that the Veteran is also already service connected for her right rib fracture. Therefore, any residuals pertaining to her claimed weakness in the joints has been compensated in the evaluation for these conditions. Lacking a diagnosis of osteoporosis, the cornerstone of service connection, entitlement to service connection for osteoporosis is not warranted. See Brammer v. Derwinski, 3 Vet. App. at 223 (holding that a current disability is a cornerstone of service connection). 2. Entitlement to service connection for osteoarthritis is denied. The Veteran contends that she has osteoarthritis that is related to her military service, specifically exposure to environmental hazards while stationed in Southwest Asia during the Gulf War. At the outset, the Board notes that the June 2021 VA examiner noted that the Veteran had the following diagnoses in addition to lumbar myositis, for which she is already service-connected: mild degenerative disc disease and mild osteoarthritis of the lumbar spine. Therefore, the Board finds that the first element of service connection, a diagnosis, has been met. Second, as to an in-service incurrence, as noted above, the Veteran believes that she has osteoarthritis due to exposure to environmental hazards while stationed in Southwest Asia during the Gulf War. The Board acknowledged about that the Veteran's military personnel records confirm that she is a Persian Gulf War Veteran. Therefore, given the Veteran's competent and credible statements, the Board finds that the second element of service connection, an in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In May 2019, the VA examiner found that the Veteran's lumbar degenerative disc disease is more likely related to the natural aging process. In June 2021, the VA examiner concluded that the Veteran's lumbar degenerative disc disease less likely as not had its onset during the Veteran's active service or is otherwise etiologically related to such service, to include her motor vehicle accident. The examiner noted that there was no evidence found in the Veteran's service treatment records (STRs) of lumbar degenerative disc disease during active service. The examiner reasoned that the degenerative changes observed at a June 2017 MRI correlate with the normal atraumatic changes of aging process. While the VA examiner acknowledged that the Veteran's STRs indicate that the Veteran was in a motor vehicle accident in February 1991, there was no evidence of lumbar spine complaints or traumatic residuals due to the motor vehicle accident. The examiner noted that all symptoms following the motor vehicle accident were related to the neck area and right thoracic 4th and 5th rib fractures with pneumothorax. The examiner further explained that imaging studies are the only way to objectively diagnose degenerative changes of the human skeletal system when degenerative changes are secondary to trauma. The findings are classic and leave a sequela that is different from normal degenerative changes of aging process; in this case, imaging studies provide evidence of normal atraumatic changes. The examiner further noted that when degenerative changes occur secondary to trauma, the degeneration occurs at an accelerated rate following a traumatic injury, up to 6 times the normal rate, and the findings are a moderate to severe stagging and not mild. The first mild degenerative changes reported were at a March 2013 lumbar imaging study. Based on the above objective evidence, the examiner concluded that the Veteran's mild lumbar degenerative changes, including osteoarthritis and discogenic disease, are unrelated to her service and are part of the natural aging process. In June 2021, the VA examiner also concluded that the Veteran's lumbar osteoarthritis is less likely as not proximately caused or aggravated by any of the Veteran's service-connected disabilities. The examiner noted that the Veteran is service connected for lumbar myositis claimed as residuals back injury, speech impairment due to neurodegenerative condition, major depression, posttraumatic stress disorder (PTSD), previously diagnosed as dysthymia, severe with associated anxiety, subjective paresthesias of the left and right lower extremity, undiagnosed illness, subjective paresthesias right and left upper extremity (dominant), undiagnosed illness, voiding dysfunction due to neurodegenerative condition, degenerative disc disease and cervical myositis claimed as posterior neck pain strain, right 4th and 5th ribs fracture, chronic costochondritis, chronic bilateral intercostal fibromyositis, bowel functional impairment due to neurodegenerative condition, status post pneumothorax with chest tube placement, asymptomatic, and oro-pharyngeal dysphagia due to neurodegenerative condition. The examiner reasoned that all of the Veteran's service connected conditions have an unrelated pathophysiology to the mild degenerative disc disease and mild osteoarthritis of the lumbar spine, and none of them have a known mechanism by which they could aggravate the natural course of degenerative changes seen in the aging process. The examiner noted that there was no evidence of osteoarthritis aggravation found at the examination, and none of the service connected conditions are etiologically related to the mild osteoarthritis of the lumbar spine. The Board finds the May 2019 and June 2021 opinions, taken together, probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, service connection for osteoarthritis is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.