Citation Nr: 21024150 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-08 390 DATE: April 22, 2021 ORDER The claim for service connection for osteoporosis is denied. The claim for service connection for acid reflux or gastroesophageal reflux disease (GERD) (herein GERD) is denied. The claim for service connection for hyperthyroidism is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that osteoporosis began during active service or is otherwise related to service, to include as a symptom of an undiagnosed illness or a medically unexplained chronic multi symptom illness (MUCMI) under 38 C.F.R. § 3.317. 2. The preponderance of the evidence is against finding that GERD began during active service or is otherwise related to service, to include as a symptom of an undiagnosed illness or an MUCMI under 38 C.F.R. § 3.317. 3. The preponderance of the evidence is against finding that hyperthyroidism began during active service or is otherwise related to service, to include as a symptom of an undiagnosed illness or an MUCMI under 38 C.F.R. § 3.317. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis, to include as due to an undiagnosed illness or an MUCMI, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for service connection for GERD, to include as due to an undiagnosed illness or an MUCMI, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 3. The criteria for service connection for hyperthyroidism, to include as due to an undiagnosed illness or an MUCMI, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to January 1993. In an October 2018 decision, the Board denied entitlement to service connection for osteoporosis, acid reflux/GERD, and a thyroid disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA. The JMPR vacated and remanded the October 2018 Board decision insofar as it denied entitlement to service connection for osteoporosis, acid reflux, and a thyroid disability. The Board remanded the claim for development consistent with the JMPR and it has been returned now following substantial compliance with the remand order. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War to a degree of 10 percent or more. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2). An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. The term MUCMI refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). A multi symptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multi symptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is “medically unexplained,” that is, the etiology and pathophysiology of the multi symptom illness, must be particular to the claimant’s case. Id. at 291. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2). There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. § 3.317 (a)(2)(C). Objective indications of 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. 38 C.F.R. § 3.317 (a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness or an MUCMI 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). For purposes of section 3.317, 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. 38 C.F.R. § 3.317(a)(4). 1. Entitlement to service connection for osteoporosis Here, the Veteran earned a Southwest Asia Service Medal with three stars, which demonstrates that he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). A February 2021 VA examination shows the Veteran has a diagnosis of osteoporosis. As the Veteran’s osteoporosis is a diagnosed condition, it cannot be considered an undiagnosed illness. However, it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). The examiner indicates that the Veteran’s osteoporosis has an understood etiology and pathophysiology. The clinician explained that the Veteran’s osteoporosis results from a clear and distinct etiology and explained that osteoporosis is a metabolic bone disease characterized by low bone mass and microarchitectural deterioration of bone tissue. This leads to bone fragility and a consequent increase in fractures. The examiner further explained that bone mass decreases with increasing age. Therefore, the examiner concluded, the Veteran’s osteoporosis is less likely than not related to a MUCMI. The Board finds this opinion probative because it is provided following a complete review of the evidence of record and includes a thorough rationale. Accordingly, as both the etiology and the pathophysiology of the Veteran’s osteoporosis are, at the very least, partially understood, it is not considered a MUCMI and presumptive service connection is not warranted. Regarding direct service connection, 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 Veteran has never asserted, nor does the evidence demonstrate or suggest, that his osteoporosis had onset during military service. Indeed, in-service examinations at enlistment in 1969, annual examinations in 1985 and 1989, and the 1992 separation examination as well as the remaining service treatment records are all negative for any complaints, treatment, or diagnosis of osteoporosis or involving the strength of his bones. The Veteran also denied a history of broken bones or bone, joint, or other deformity on his Report of Medical History at separation from active service. His osteoporosis was first noted according the evidence in the claims file in 2008, about 15 years post-discharge. Further, the February 2021 VA examiner opined that the Veteran’s osteoporosis is not at least as likely as not related to an in-service injury, event, or disease. The examiner explained that the Veteran did not have any complaints, symptoms, or treatment during military service, he specifically denied back pain during his reports of medical history completed during service, and such symptoms were not reported for well over a decade post-discharge. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board acknowledges the Veteran’s belief or contention that his current osteoporosis is etiologically related to military service, he is not competent to provide a diagnosis in this case, determine whether any symptoms were manifestations of osteoporosis, or provide an etiology opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s osteoporosis to military service, or his service as a Gulf War Veteran. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) The Veteran contends that he incurred acid reflux or GERD as a result of his service in the Gulf War. As noted above, the Veteran earned a Southwest Asia Service Medal with three stars, which demonstrates that he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). A February 2021 VA examination shows the Veteran has a diagnosis of GERD. As the Veteran’s GERD is a diagnosed condition, it cannot be considered an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(ii). Moreover, GERD is a structural gastrointestinal disorder and therefore not considered a MUCMI. 38 C.F.R. § 3.317(a)(2)(i)(B)(3); 76 Fed. Reg. 41,696 (Jul. 15, 2011); see Atencio v. O’Rourke, 30 Vet. App. 74, 83 (2018). Thus, presumptive service connection for GERD under § 3.317 is not warranted. Regarding direct service connection, 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 Veteran notes his complaints of midsection chest pain during military service, which he alleges could be a sign of acid reflux during service. In addition, a December 1992 stool test was positive for guaiac. However, the Board notes that acid reflux, GERD, or any symptoms noted to be directly connected to such a disease, were not found or reported during military service. Indeed, his examinations at enlistment in 1969, annual examinations in 1985 and 1989, and the 1992 separation examination as well as the remaining service treatment records are all negative for any complaints, treatment, or diagnosis of GERD. His GERD was first noted according the evidence in the claims file in 2002, about nine years post-discharge. Further, the February 2021 VA examiner opined that the Veteran’s GERD is not at least as likely as not related to an in-service injury, event, or disease. The examiner acknowledged the chest pain and test results but explained that the Veteran did not have any complaints, symptoms, or treatment during military service that would demonstrate that his acid reflux or GERD are related to military service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board acknowledges the Veteran’s belief or contention that his current GERD is etiologically related to military service, he is not competent to provide a diagnosis in this case, determine whether any symptoms were manifestations of GERD, or provide an etiology opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s GERD to military service, or his service as a Gulf War Veteran. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for hyperthyroidism The Veteran contends that he incurred a thyroid disability as a result of military service. As noted above, he qualifies as a Persian Gulf Veteran under VA regulation. 38 C.F.R. § 3.317(e). A February 2021 VA examination shows the Veteran has a diagnosis of hyperthyroidism. As the Veteran’s hyperthyroidism is a diagnosed condition, it cannot be considered an undiagnosed illness. However, it is eligible for consideration as a MUCMI. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). The examiner indicates that the Veteran’s hyperthyroidism has an understood etiology and pathophysiology. The clinician explained that the Veteran’s hyperthyroidism results from a clear and distinct etiology, explained that it is the result of increased thyroid hormone production by the thyroid gland, and stated that the most common cause is an autoimmune disorder. Therefore, the examiner concluded, the Veteran’s hyperthyroidism is less likely than not related to an MUCMI. The Board finds this opinion probative because it is provided following a complete review of the evidence of record and includes a thorough rationale. Accordingly, as both the etiology and the pathophysiology of the Veteran’s hyperthyroidism are, at the very least, partially understood, it is not considered a MUCMI, and presumptive service connection is not warranted. Regarding direct service connection, 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 Veteran has never asserted, nor does the evidence demonstrate or suggest, that his hyperthyroidism had onset during military service. Indeed, in-service examinations at enlistment in 1969, annual examinations in 1985 and 1989, and the 1992 separation examination as well as the remaining service treatment records are all negative for any complaints, treatment, or diagnosis of hyperthyroidism. The Veteran denied a history of any thyroid disease in Dental History Reports in December 1990 and November 1992. The Veteran also denied “thyroid trouble” in his Report of Medical History prior to separation from service in November 1992. The Board notes that endocrinopathies, such as hypothyroidism, are chronic disabilities which are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from qualifying service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. § 3.309 (a) (2017). Unfortunately, none of the evidence of record indicates that the Veteran’s thyroid disability had onset within a year of the Veteran’s separation from active service. The Veteran has not alleged that his thyroid disability manifested to a compensable degree within a year of separation from service and alleged onset of his thyroid disability in March 2010 in his application for service connection. Additionally, the Veteran’s private treatment records include a sleep disorders evaluation in November 2002 that reports in a review of systems that the Veteran has no thyroidal disease or symptoms and the evidence of record reflects a diagnosis as early as September 2012. Further, the February 2021 VA examiner opined that the Veteran’s hyperthyroidism is not at least as likely as not related to an in-service injury, event, or disease. The examiner explained that the Veteran did not have any complaints, symptoms, or treatment during military service, he specifically denied back pain during his reports of medical history completed during service, and such symptoms were not reported for well over a decade post-discharge. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board acknowledges the Veteran’s belief or contention that his current hyperthyroidism is etiologically related to military service, he is not competent to provide a diagnosis in this case, determine whether any symptoms were manifestations of osteoporosis, or provide an etiology opinion. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s hyperthyroidism to military service, or his service as a Gulf War Veteran. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. B., 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.