Citation Nr: 20023025 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 15-34 732 DATE: April 2, 2020 ORDER The petition to reopen the claim for service connection for a degenerative disc disease (DDD) of the lumbar spine and lumbar strain is granted. Entitlement to service connection for DDD of the lumbar spine and lumbar strain is granted. Entitlement to service connection for an acquired psychiatric disorder, to include major depression, previously claimed as posttraumatic stress disorder (PTSD), as secondary to the service-connected back disability, is granted. Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected back and psychiatric disabilities, is granted. Entitlement to service connection for multiple myeloma, also claimed as Hodgkin’s disease, is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for DDD of the lumbar spine and lumbar strain was previously denied in a final, unappealed December 2009 rating decision; new evidence received since that decision the bears on an unsubstantiated fact necessary to substantiate the claim has been received. 2. Resolving reasonable doubt in the Veteran’s favor, his DDD of the lumbar spine and lumbar strain disability is at least as likely as not related to his in-service back complaints. 3. The Veteran’s acquired psychiatric disorder, to include major depressive disorder, previously claimed as PTSD, is aggravated beyond its natural progression by his service-connected back condition. 4. The Veteran’s OSA is proximately due to his service-connected back and psychiatric disabilities. 5. The preponderance of the evidence of record is against finding that the Veteran has had multiple myeloma at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for service connection for DDD of the lumbar spine and lumbar strain have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.203, 20.1103 2. The criteria for service connection for DDD of the lumbar spine and lumbar strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, previously claimed as PTSD, as secondary to service-connected back condition, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for OSA, as secondary to service-connected back and psychiatric disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for multiple myeloma, also claimed as Hodgkin’s disease, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1974 to August 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued in August 2013 and March 2017. New & Material—DDD of the Lumbar Spine & Lumbar Strain Entitlement to service connection for a lumbar strain and DDD of the lumbar spine was previously denied in a December 2009 rating decision. The Veteran did not appeal that decision by submitting a notice of disagreement or challenge that decision by submitting new and material evidence with respect to that decision within one year. The December 2009 denial is final. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.156(b), 20.203(b). Final decisions cannot be reopened unless new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it was not before agency decision makers at the time that the previous decision was rendered and is material if it, either by itself or when considered with the previously received evidence, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims (Veterans Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the evidence already in the record, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. Here, additional evidence that relates to an unestablished fact and that establishes a reasonable possibility of substantiating the claim for a back condition has been submitted. Two new nexus opinions, one from a VA examination conducted in September 2012 and another from a July 2019 private examiner, have been added to the record. Consequently, the Board finds that this evidence is sufficient to warrant reopening the claim for service connection for the claimed back condition, and, to this extent, the claim is granted. Service Connection 1. DDD of the lumbar spine and a lumbar strain The Veteran contends that he injured his back during his service and that he now has a chronic back condition as a result. The Board concludes that the Veteran has a current disability that is related to his in-service back complaints including muscle strain and spasm. 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). VA treatment records show that the Veteran has complained of back pain throughout the appeal period, and various radiology reports during the appeal period have confirmed the existence of degenerative disease in the lumbar spine during the appeal period. Thus, the question becomes whether the current disability is related to service. On this question, there are probative opinions in favor of and against the claim. The evidence against the claim includes the September 2012 VA examination. This examiner concluded that the Veteran’s back condition was not at least as likely as not related to his in-service muscle condition. The examiner noted that, while the Veteran complained of back pain during his service, there was no specific episode of injury documented in the service treatment records and no specific medical findings were made as to the etiology of the Veteran’s in-service back pain. In the absence of a specific episode of injury as the source of traumatic arthritis, the examiner concluded that the Veteran’s back condition, including his degenerative disease, was more likely age related. The examiner noted that the Veteran had degenerative disease in several joints. The evidence in favor of the claim includes a July 2019 non-VA opinion which determined that the Veteran’s current back condition was related to the back pain that the Veteran reported during his service. This examiner noted that the Veteran had no back complaints prior to his military service and began to report back pain in early 1977 and continued to complain of and seek treatment for back pain for the remainder of his service. While the examiner noted that the Veteran’s service treatment record indicated no specific incident of injury, the Veteran was able to recount an incident of injury to the examiner occurring in 1976. This evidence, in combination with the activity involved with life as a marine and military mechanic convinced the examiner that the Veteran’s current lumbar muscle strain and DDD were related to the Veteran’s in-service back complaints. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar strain and DDD of the lumbar spine are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar strain and DDD of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. An acquired psychiatric disorder The Veteran has claimed entitlement to PTSD. The Board has interpreted this claim broadly to encompass any acquired psychiatric condition. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has been treated for psychiatric complaints throughout the appeal period. The February 2019 non-VA examination resulted in a diagnosis of Major depressive disorder, with psychotic features. The examiner opined in an accompanying opinion that the Veteran’s psychiatric disorder was secondary to his physical conditions, which include his back pain. The examiner noted the longstanding and recurring nature of the Veteran’s back complaints which have limited his ability to participate in the ordinary activities and exacerbated his mental health symptoms. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability, to include major depressive disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Sleep apnea The Veteran contends that he has OSA as a result of his service. Alternatively, he has submitted evidence that his OSA is the result of his now service-connected back and psychiatric disabilities. The August 2011 private sleep study shows the Veteran has OSA, and the July 2019 private examiner opined that it is at least as likely as not proximately due to his service-connected back and psychiatric conditions. The examiner cited the fact that the Veteran’s fragmented sleep, due to psychiatric symptoms results in less time in the most restorative types of sleep which leads to higher upper respiratory collapsibility which can contribute to the pathogenesis of obstructive sleep apnea. The Veteran also reported that his psychiatric symptoms, such as anxiety, prevented him from adequately using his CPAP to treat his OSA, because he would remove the mask to decrease his anxiety. His back condition also prevents him from finding a comfortable position that lessens his OSA symptoms, permitting better sleep. As a result, the examiner concluded that both these conditions are major factors for the Veteran’s OSA condition. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for OSA is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Multiple myeloma The Veteran contends that he has Hodgkin’s disease or multiple myeloma as a result of his service at Camp Lejeune. 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). There are special regulations that provide for a presumption of service connection for certain conditions as a result of service at Camp Lejeune. 38 U.S.C. § 1112; 38 C.F.R. § 3.307(a). However, in order to qualify, the claimant must still be diagnosed with a claimed condition. The Board concludes that the Veteran does not have a current diagnosis of Hodgkin’s disease or multiple myeloma and has not had any such a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Treatment records contain no indication that the Veteran has this condition, and he has not described symptoms of this condition. Consequently, the Board finds that the evidence of record preponderates against a finding that the Veteran has been diagnosed with this condition, and this claim is therefore denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Johnston, 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.