Citation Nr: 21068724 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 13-25 987 DATE: November 12, 2021 ORDER Entitlement to service connection for a cervical spine disability, to include as a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI), is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a cervical spine disability, to include as a manifestation of an undiagnosed illness or a MUCMI. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability, to include as a manifestation of an undiagnosed illness or a MUCMI, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1987 to August 1990 and November 1990 to June 1991, with additional service in the Army Reserves. The Veteran had service in Southwest Asia from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from March 2011 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In March 2018, the Board granted the issues of entitlement to service connection for irritable bowel syndrome, hyposmia, eczema of the bilateral lower extremities, gastroesophageal reflux disease, and headaches, which were effectuated in a March 2019 rating decision. In the March 2018 decision, the Board also remanded the claims of entitlement to service connection for hypertension, residuals of oral surgery other than hyposmia and a sinus disorder, joint pain, a bilateral knee disability, bilateral hearing loss, tinnitus, and a sinus disability for additional development. In a June 2020 rating decision, the issues of entitlement to service connection for a bilateral knee disability, tinnitus, chronic sinusitis, and a bilateral hip disability, were granted; as such, these issues are no longer before the Board. In an April 2021 decision, the Board granted entitlement to service connection for hypogeusia and denied service connection for hearing loss, a bilateral shoulder strain, a bilateral wrist strain, a bilateral ankle disability, and a bilateral elbow disability. The issues of entitlement to service connection for hypertension, a low back disability, a cervical spine disability and a disability of the toes were remanded. In a July 2021 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine, hallux valgus, bilateral hammer toes, and hypertension. As such, these issues are no longer on appeal. Of note, an August 2021 rating decision proposed to sever service connection for hypertension; however, while the severance of service connection for hypertension has been proposed, such has not been implemented at the time of this Board decision. From a procedural standpoint, this determination is not a finalized decision and a proposed rating decision cannot be appealed. Accordingly, no further action regarding this matter can be undertaken by the Board at this time. The Board notes that the majority of the Veteran's service treatment records are unavailable. See January 2011 Memorandum. The Board recognizes that in such cases where service records are missing, there is a heightened obligation to assist the Veteran in the development of his case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. Entitlement to service connection for a cervical spine disability, to include as a manifestation of an undiagnosed illness or a MUCMI. The Veteran seeks entitlement to service connection a cervical spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a Persian Gulf Veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the Veteran had active service in Southwest Asia from January 1991 to May 1991. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). The Veteran asserts he suffers from occasional neck pain. Unfortunately, the preponderance of the evidence indicates the Veteran does not have a disability manifested by neck or cervical spine pain. The Veteran was afforded a VA examination in July 2021, at which time he reported that he started having intermittent soreness in his neck in 2018 but that he never went to the doctor for the pain. He indicated that his neck soreness started gradually. However, there was no objective evidence of any cervical spine disability. The examiner specifically noted that despite subjective reports of intermittent soreness, the Veteran himself denied any functional loss or functional impairment. Examination revealed a normal examination with no objective evidence of pain, no decreased range of motion, and no abnormal findings. The examiner noted there was no functional impact. The examiner explained that there was no objective evidence of a cervical spine disability, the lay evidence supports that the Veteran has not sought any treatment, the Veteran has not missed work or had a change in his appearance as the result of any symptoms, and he has had no mental or emotional/attitude changes due to any reported symptoms. As noted, service connection can also be awarded for certain disabilities occurring in Persian Gulf Veterans. 38 C.F.R. § 3.317. However, one of the requirements for service connection under that regulation is that indications of a qualifying chronic disability, which could include joint pain, must manifest to a degree of 10 percent or more. 38 C.F.R. § 3.317(a)(1)(i). The July 2021 VA examiner specifically noted that the Veteran had no findings, signs, or symptoms attributable to a diagnosis of a of a cervical spine disability. Additionally, in this case, the Veteran was noted to have a normal range of motion of the cervical spine during examination, with no objective functional impairment, no muscle spasm, guarding, localized tenderness or vertebral body fracture with loss of 50 percent or more of the height; these results would not warrant a compensable rating based on the criteria for rating the cervical spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5244. A compensable rating can also be awarded based on painful motion of the joint or a painful joint. 38 C.F.R. § 4.59. However, at the July 2021 examination, the examiner specifically noted there was no objective evidence of painful motion. While the Veteran asserts pain, pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). There is no credible persuasive evidence that the Veteran suffers from pain that affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance that constitutes functional loss. As the Veteran's joint pain has not manifested to a degree of 10 percent or more, service connection cannot be awarded under 38 C.F.R. § 3.317. The Board has considered the Veteran's arguments. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, because no functional impairment has been demonstrated, there is no post-service diagnosis of a disability manifested by pain of the cervical spine, and the Veteran's symptoms have not manifested to a degree of 10 percent, the Board finds that the Veteran does not have a current disability of the cervical spine. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; see also 38 C.F.R. §§ 3.303, 3.304. Thus, as no disability or functional impairment is shown, there can be no valid claim for service connection. In the absence of a disability, the other elements of service connection need not be discussed, and service connection must be denied for a cervical spine disability. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.