Citation Nr: 21041632 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-13 200 DATE: July 9, 2021 ORDER The claim as to the issue of service connection for a digestive disorder to include irritable bowel syndrome has been withdrawn, and therefore the appeal as to that issue is dismissed. The claim as to the issue of service connection for a bilateral eye disorder (claimed as dry eyes) has been withdrawn, and therefore, the appeal as to that issue is dismissed. Service connection for tinnitus is granted. Service connection for osteoporosis of the thoracolumbar spine is granted. Service connection for osteoporosis of the cervical spine is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran notified the Board during the July 2020 Board hearing that he requested a withdrawal of his appeal for the issue of entitlement to service connection for a digestive disorder to include irritable bowel syndrome. 2. Prior to the promulgation of a decision in the appeal, the Veteran notified the Board during the July 2020 Board hearing that he requested a withdrawal of his appeal for the issue of entitlement to service connection for a bilateral eye disorder. 3. The evidence is evenly balanced as to whether the Veteran's tinnitus had its onset during active military service. 4. The Veteran's osteoporosis of the thoracolumbar spine is a diagnosed disability; however, the medical evidence is at least evenly balanced as to whether it is a medically unexplained chronic multi-symptom illness (MUCMI) of unknown etiology which manifested to a compensable degree after service separation. 5. The Veteran's osteoporosis of the cervical spine is a diagnosed disability; however, the medical evidence is at least evenly balanced as to whether it is a MUCMI of unknown etiology which manifested to a compensable degree after service separation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal as to the claim of service connection for a digestive disorder to include irritable bowel syndrome by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a substantive appeal as to the claim of service connection for a bilateral eye disorder by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for osteoporosis of the thoracolumbar spine are met. 38 U.S.C. §§ 1110, 1112, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 5. The criteria for service connection for osteoporosis of the cervical spine are met. 38 U.S.C. §§ 1110, 1112, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2004 to May 2016. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for tinnitus, bilateral eye condition, digestive disorder, possibly IBS, neck condition, and thoracolumbar condition. The Veteran's notice of disagreement (NOD) was received in January 2017. The RO issued a statement of the case (SOC) in February 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2018. In July 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Withdrawal of Appeal 1. Service connection for a digestive disorder to include irritable bowel syndrome 2. Service connection for a bilateral eye disorder (claimed as dry eyes) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran informed the Board at a hearing in July 2020 that he wished to withdraw the issues of entitlement to service connection for a digestive disorder to include irritable bowel syndrome and a bilateral eye disorder. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-358 (1993). The Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, the Veteran has withdrawn the appeal as to these issues and there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues and they are dismissed. Service Connection Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, tinnitus as an other organic disease of the nervous system and carotid artery disease (arteriosclerosis), will be presumed to be related to service 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a 'qualifying chronic disability' that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. 38 U.S.C. § 1117(a)(1)(B); (b)(2); 38 C.F.R. § 3.317 (a)(1)(i). 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 multisymptom 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, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). 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). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). A medically unexplained chronic multisymptom illness is defined by a cluster of signs or symptoms, and specifically. 38 C.F.R. § 3.317(a)(2)(ii). It 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. Medically unexplained chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic Multi-Symptom illness include, but are not limited to, muscle pain,joint pain, and neurological signs or symptoms. 38 U.S.C. § 1117(g)(5)-(6); 38 C.F.R. § 3.317(b)(4)-(6). 3. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to acoustic trauma during active military service. In this regard, he asserts that he flew airplanes and he was exposed to loud noises during service. He also contends that he first noticed tinnitus during service and that bilateral tinnitus has been present and recurrent since that time. See July 2017 VA examination and July 2020 Hearing Transcript. The Board concludes that the Veteran has a current disability of tinnitus that began during active military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The evidence of record establishes that the Veteran currently has tinnitus. The Veteran has reported that he experiences tinnitus and the Veteran is considered competent to report the observable manifestations of his claimed disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is nothing in the record that indicates the Veteran's statements are not credible. Additionally, the July 2017 VA examination report indicates a current diagnosis of subjective recurrent tinnitus. A review of the Veteran's service treatment records reveals no complaints of tinnitus or symptoms of tinnitus during active military service. The Veteran's January 2016 separation examination and Report of Medical History does not document a diagnosis of tinnitus or the Veteran reporting symptoms of tinnitus. Nonetheless, as noted above, the evidence shows that the Veteran was exposed to loud noise during active military service. Specifically, the Veteran asserts he was exposed to loud noise as a pilot and flight instructor during his military naval service. His DD Form 214 shows that his military occupational specialties were aviator, flight instructor, and squadron department heard. Exposure to loud noise would be consistent with the circumstance of his 12 years of active duty service. See 38 U.S.C. § 1154(a). Furthermore, the Veteran's service treatment records document that the Veteran was routinely exposed to noise. Thus, the Board finds that the Veteran experienced acoustic trauma during active military service. With respect to the issue of whether the Veteran's tinnitus began in service or is otherwise related to active military service, the Veteran contends that he first noticed tinnitus during service that has continued to the present since that time. The Veteran is competent to report the onset and persistent nature of his tinnitus symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (holding that particularly with respect to claims for tinnitus, a veteran is competent to present evidence of a diagnosis and continuous symptoms). The Veteran has consistently reported throughout the appeal period that he has experienced recurrent tinnitus since active military service. Thus, there is no reason to doubt the Veteran's credibility with regard to his lay statements as to onset of tinnitus in service, and continuity of symptomatology since service. With respect to the issue of whether the Veteran's current tinnitus is caused by or related to active military service to include acoustic trauma, the claims file contains a negative medical opinion. In this regard, the July 2017 VA examiner provided the medical opinion that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The Veteran's tinnitus is considered a chronic disease under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Thus, the second and third elements of service connection are demonstrated through the credible evidence of continuity of symptoms of tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Given the evidence of record shows acoustic trauma in service and the Veteran's credible assertions of the onset of tinnitus in service with continuity of symptomatology to the present, the evidence is at least evenly balanced in showing that the current Veteran's current tinnitus had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 4. Entitlement to service connection for a thoracolumbar spine disorder to include as due to medically unexplained chronic multisymptom illness (MUCMI). 5. Entitlement to service connection for a cervical spine disorder to include as due to medically unexplained chronic multisymptom illness (MUCMI). The Veteran contends that he developed cervical and thoracolumbar spine issues due to flying as a pilot in the United States Navy. He explained that in the 12 years of active duty, he flew around 2,200 total hours with a lot of that involved pulling G-forces while turning his neck various ways. The Veteran asserts that the repeated stress from flying caused his back pain. See January 2018 notice of disagreement and July 2020 Hearing Transcript. As noted above, 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, 2021. 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 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 multisymptom 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 multisymptom 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 multisymptom illness, must be particular to the claimant's case. Id. at 291. Here, the Veteran had active service in Iraq from November 2009 to June 2010 See DD Form 214. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). VA examination reports dated in July 2017 show that Veteran has a diagnosis of thoracic, lumbar, and cervical spine osteoporosis. The Veteran's osteoporosis has existed at least from July 2017 to the present, a range that six months or more. Thus, it is considered chronic under the regulatory definition. Moreover, the Veteran's osteoporosis of the lumbosacral spine and cervical have manifested to a degree of 10 percent or more. In this regard, osteoporosis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5013, which evaluates residuals of osteoporosis. Diagnostic Code 5013 states that Diagnostic Coe 5013 is to be evaluated as degenerative arthritis, based on limitation of motion of affected parts. Diagnostic Code 5242 evaluates degenerative arthritis of the cervical and thoracolumbar spine and directs that degenerative arthritis is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or muscle spasm or guarding not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or combined range of motion of the cervical spine not greater than 170 degrees. The July 2017 VA examination of the thoracolumbar spine shows forward flexion of the thoracolumbar spine was from zero to 45 degrees and the July 2017 VA examination of the cervical spine shows that forward flexion of the cervical spine was from zero to 20 degrees. Accordingly, the medical evidence shows that the Veteran's osteoporosis of the lumbosacral spine and cervical have manifested to a degree of 10 percent or more. Finally, the July 2017 VA examination indicates that the Veteran's osteoporosis has an inconclusive etiology. Specifically, the July 2017 VA examiner noted that the Veteran had findings today on his cervical, thoracic, and lumbar spine X-rays of osteoporosis with an old appearing, T10 compression fracture. The examiner explained that there is no known etiology for a for a set of findings of this type in an otherwise healthy young male. The examiner concluded that this is a diagnosed illness with an unknown etiology. As there is no affirmative evidence to the contrary, see 38 C.F.R. § 3.317(a)(7)(i)-(iii), the Veteran's osteoporosis of the thoracolumbar and cervical spine is considered a MUCMI and presumptive service connection is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.