Citation Nr: 21032708 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-30 337 DATE: May 27, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is granted. Entitlement to service connection for a chronic disability manifested by weight loss is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disorder had its' onset in service. 2. The preponderance of the evidence shows that at no time during the appeal was the Veteran diagnosed with a chronic disability manifested by weight loss, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a chronic disability manifested by weight loss have not been met. 38 U.S.C. §§ 1110, 1117, 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 May 2003 to September 2003 and from December 2003 to March 2005 with service in Southwest Asia from March 2004 to February 2005. He appeals a January 2013 rating decision denying entitlement to service connection for a lumbar spine condition and a May 2014 rating decision denying entitlement to service connection for weight loss. The Board of Veterans' Appeal (Board) remanded the claims on appeal in June 2018 and December 2020 for further development. Specifically, examinations were ordered to determine the etiology of the Veteran's low back condition and claimed weight loss. The Board is satisfied there has been substantial compliance with its previous remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has reached this conclusion because the Agency of Original Jurisdiction (AOJ) conducted appropriate efforts to develop the record to include affording him VA examinations in August 2020, January 2021, and February 2021. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination or obtain additional records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Next, the Board notes that additional evidence was added to the record since the AOJ issued the February 2021 supplemental statement of the case (SSOC). However, these records continue to be negative for a diagnosis of a chronic disability manifested by weight loss, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. Therefore, the Board finds that they are not pertinent. Accordingly, the Board finds that it may adjudicate the appeal without obtaining a waiver or Remanding for AOJ review. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, 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 U.S.C. § 1110; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, 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 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. See 38 C.F.R. § 3.117 (d)(1) and (2) (a "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 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). In this regard, service connection may 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, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 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. 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 under 38 U.S.C. § 1117; 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, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. 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 medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means 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." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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). 1. Entitlement to service connection for a lumbar spine disorder. The Veteran contends that his lumbar spine disability is related to active service. Initially, the record shows the Veteran being diagnosed with lumbar spine disorders (i.e., spinal stenosis, degenerative disc disease, degenerative joint disease, and status post S1 diskectomy). See, e.g., VA examination dated in August 2020. As to an in-service injury, the Veteran specifically asserts that he initially began to experience low back pain in 2003 due to the constant use of a heavy pack when travelling through Iraq/Kuwait. Later, in 2004, he states that he was involved in a rough helicopter landing causing injury to his back. He argues that he was not given adequate treatment for his injuries in service. Particularly, he states that he was told not to report any injuries during his February 2004 post-deployment assessment, or he would not be released home. The Veteran also submitted a buddy statement from a fellow service member attesting to such treatment at his former command. In addition, the Veteran's father has stated that he remembers the Veteran speaking of the helicopter accident, and resulting injuries, at the time it happened. Tellingly, the Veteran is competent and credible to report on the observable symptoms of his lumbar spine disorder in service (i.e., pain and lost motion) as well as the in-service events (i.e., rough helicopter landings) and his buddy as well as his father competently and credibly report on what they saw and heard because it comes to them via their own senses. See Davidson, supra. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes based on the competent and credible lay evidence of record that he had a back injury while on active duty. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b); see also Gilbert, supra. Further, given the nature of the Veteran's disorder (i.e., a back disorder manifested by pain and lost motion), the appellant's claims that he has felt symptoms in his lower back since service, and the subsequent post-service treatment records which regularly document his continued complaints and treatment for a back disorder, it is reasonable for the Board to find that he had problems with a back disorder during and since service. See Davidson, supra; Owens, supra. On the other hand, the Board notes that two separate VA examiners have opined that the Veteran's lumbar spine disability is less likely than not related to active service. However, the August 2020 VA examiner based the negative nexus opinion solely on the absence of supporting records and there the Board finds it inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (an opinion based exclusively on an absence of documented care is inadequate without further explanation.). In January 2021, the VA examiner based the negative nexus opinion on the premise that the Veteran was asymptomatic between separation from service and his 2011 diagnosis. However, the Veteran has credibly reported that he has suffered from continuous pain and/or numbness since the time of his in-service helicopter incident. Therefore, because the VA examiner did not consider the Veteran's credible statements, the Board finds the corresponding medical opinion unpersuasive. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board may reject a medical opinion based on an inaccurate factual basis.) Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with a back disorder since a qualifying period of service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for a back disorder is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Entitlement to service connection for a chronic disability manifested by weight loss. The Veteran contends that he has suffered from unexplained weight loss, to include as related to Gulf War Syndrome, due to active service. Initially, the record shows that the Veteran had the required service in Southwest Asia during the Persian Gulf War. Therefore, the Board finds that the presumptions found at 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are applicable to the current appeal. Moreover, the Board finds that the Veteran is competent and credible to report on what comes to him via her own senses like weight loss. See Davidson, supra. However, the Veteran's service treatment records are negative for a history, injury, complaints, diagnoses, or treatment for a chronic disability manifested by weight loss. See Colvin, supra. Likewise, and more importantly, the Board notes that in March 2020 and January 2021 the Veteran was provided with VA examinations to ascertain if he had a chronic disability manifested by weight loss, an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, and/or a diagnosable chronic multisymptom illness with a partially explained etiology. Tellingly, these examiners opined, in substance, that he did not have such disabilities. Moreover, the Board finds these medical opinions the most probative evidence of record because they were held for the express purpose of obtaining such a diagnosis and the negative opinions were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Owens, supra. Similarly, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose a chronic disability manifested by weight loss nor diagnose an undiagnosed illness because diagnosing them requires special medical training that he does not have and therefore he cannot provide the missing diagnoses. See Davidson, supra. Lastly, the Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record, to include the above VA examinations, shows the claimed disability results in functional impairment that affects earning capacity. See Owens, supra; also see Wait v. Wilkie, No. 18-4349 (August 26, 2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have diagnoses of a chronic disability manifested by weight loss nor an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology manifested by weight loss at any time during the pendency of the appeal and this claim is denied. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.317. There is no significant evidence against such a finding. (Continued on the next page) In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a chronic disability manifested by weight loss and there is no doubt to be otherwise resolved. See Gilbert, 1 Vet. App. 49. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, 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.