Citation Nr: 22014268 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-03 989 DATE: March 12, 2022 ORDER Entitlement to service connection for osteopenia, to include as due to Gulf War illness, is denied. FINDING OF FACT The Veteran's osteopenia is not due to an undiagnosed illness or to service. CONCLUSION OF LAW The criteria for service connection for osteopenia are not met. 38U.S.C. §§1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from June 1976 to June 1979, August 2003 to August 2004, and from January 2010 to November 2010. The matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The claim was remanded by the Board in December 2015. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted on a presumptive basis for a Persian Gulf War veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active 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 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In claims based on qualifying chronic disability, 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). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2)-(3). Signs or symptoms that may be manifestations of undiagnosed illness 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; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). The term Persian Gulf War veteran means 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). The Southwest Asia theater of operations refers to Iraq, Kuwait, 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). Service in Afghanistan is not considered Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317 (a). See Cox v. McDonald, 28 Vet. App. 318 (2016). Compensation shall not be paid under this section if: (i) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (ii) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (iii) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (a)(7). Here, the Veteran's service personnel records show that he qualifies as a Persian Gulf veteran for the purposes of 38 C.F.R. § 3.317. Thus, the provisions of 38 U.S.C. § 1117 are potentially applicable. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness related to service in the Southwest Asia Theater of Operations during the Persian Gulf War, is denied. As an initial matter, in August 2012, the Veteran originally filed a claim for entitlement to service connection for osteoporosis. However, the medical evidence shows that he does not have osteoporosis but osteopenia. See, e.g., October 2021 VA Medical Opinion. The Board acknowledges the October 2016 VA medical opinion, in which the examiner opined that the Veteran "has a history positive for osteoporosis that is less likely than not incurred in or caused by the exposure to environmental hazards in the Gulf War during service." However, there is no medical record indicating that the Veteran was ever diagnosed with osteoporosis. Furthermore, in April 2021, the Board remanded the claim for an osteoporosis examination, and the subsequent October 2021 VA examination revealed that the Veteran does not have osteoporosis but osteopenia, or low bone mass, as evidenced by bone scan records. It is well-settled that a claimant does "not file a claim to receive benefits only for a particular diagnosis, but for the affliction his... condition, whatever that is, causes him." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given such, the Board finds it appropriate to recharacterize the Veteran's claim as a claim for entitlement to service connection for osteopenia. Next, as the Veteran's claimed disability has been attributed to osteopenia, a known clinical diagnosis, the current osteopenia is not subject to presumptive service connection as a Gulf War hazard. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. As such, the Board must consider if service connection may be granted on a direct or secondary basis. Here, treatment records show that the Veteran was diagnosed with osteopenia in 2009. See, e.g., October 2021 VA Medical Opinion. Thus, a current disability has been established. Concerning an in-service event and nexus, the Veteran has asserted that the possible cause of his osteopenia was the exposure to environmental hazards in the Gulf War. Because the Veteran is a Gulf War Veteran, the in-service occurrence is conceded. Therefore, the in-service event element has been met. However, service connection cannot be granted because the nexus element of service connection has not been met. In the October 2021 VA medical opinion, the examiner opines that the Veteran's osteopenia, or low bone mass symptoms began after his exposures in service. Moreover, there is no documentation or evidence linking the Veteran's current low bone mass with his military service. There is no evidence that this examiner is not competent and credible, thus the Board finds that this opinion is entitled to significant probative weight with respect to whether or not a nexus is established between the Veteran's current osteopenia and his service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page) While the Veteran has stated that he believes his disability is due to service, he is not competent to opine as to a nexus, as this is a complex medical determination, and the record does not establish that the Veteran has the medical expertise to make such a determination. As the probative evidence is against the finding of a nexus, direct service connection for osteopenia must be denied. Given that the evidence is not in approximate balance, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.