Citation Nr: 21067968 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-39 005A DATE: November 8, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for plasmacytoma (also claimed as multiple myeloma) is granted. Entitlement to service connection for a right hip condition, to include right hip pain, is denied. REMANDED Entitlement to service connection for plasmacytomas (also claimed as multiple myeloma) is remanded. Entitlement to service connection for mild degenerative joint disease of the lumbar spine with spondylosis is remanded. Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for diabetes mellitus, type II, as secondary to service-connected posttraumatic stress disorder with depressive disorder and under 38 U.S.C. 1151 for diabetes mellitus, type II is remanded. FINDINGS OF FACT 1. Evidence received since the final decision denying entitlement to service connection for plasmacytoma (also claimed as multiple myeloma) is new and raises a reasonable possibility of substantiating the claim. 2. The weight of the competent and probative evidence is against finding that the Veteran has had a current right hip disability or a functional impairment due to right hip pain at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of entitlement to service connection for plasmacytoma (also claimed as multiple myeloma) are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a right hip condition, to include right hip pain, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to November 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The Veteran testified at a videoconference Board hearing in January 2018. A copy of the hearing transcript is associated with the claims file. These matters were before the Board and remanded for additional development in May 2014, May 2018, and May 2019. Reopening of Claims Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for plasmacytoma (also claimed as multiple myeloma) In an October 2009 decision, the RO denied entitlement to service connection for plasmacytoma (also claimed as multiple myeloma) on the basis that the evidence failed to show exposure to hazardous chemicals or ionizing radiation in service. The Veteran was notified of the decision in October 2009. The Veteran did not file a timely notice of disagreement or submit new evidence within the appeal period and the decision became final. The Veteran attempted to reopen the claim for service connection for plasmacytoma (also claimed as multiple myeloma) in December 2011. Since the October 2009 rating decision, evidence added to the claims file includes lay statements, private treatment records, VA treatment records, and the Board hearing transcript. In June 2018, the Veteran submitted a statement from his treating physician, Dr. P.H. Dr. P.H. opined that it was likely that the Veteran's multiple myeloma was a result of the Veteran's exposure to ionizing radiation during service. June 6, 2018, Medical Treatment Record New and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final October 2009 rating decision. This evidence, when considered with the previous evidence of record, relates to unestablished facts (i.e., a nexus or continuity of symptomatology since service) necessary to substantiate the claim. New and material evidence having been received, the claim of service connection for plasmacytoma (also claimed as multiple myeloma) is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted on a secondary basis where the evidence shows that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Compensation for secondary service connection based on aggravation of a non-service-connected condition is only warranted for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 2. Entitlement to service connection for a right hip condition. The Veteran contends that he developed a right hip condition due to his service-connected right knee disability. Specifically, the Veteran testified that, prior to his right knee surgery, he messed his right hip up because his right knee used to give out and lock up causing him to turn, stumble, or fall. January 30, 2018, Hearing Transcript. The weight of the competent and probative evidence is against finding that the claimed right hip condition is related to the Veteran's period of active service. The Veteran underwent a VA examination for a right hip condition in October 2019. The Veteran reported that he experienced intermittent right hip pain for which he takes hydrocodone. He did not report flare-ups or having any functional loss or functional impairment of the right hip. Initial range of motion was normal with no pain or objective evidence of localized tenderness or pain on palpation of the joint on examination. In fact, the examination revealed no abnormal or significant findings. The examiner concluded that the Veteran did not have a current diagnosis associated with the claimed right hip condition. While pain is generally not a diagnosis for VA purposes, VA recognizes pain as a disability where there is also functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the October 2019 examination for the right hip indicates that there is no functional impairment of the Veteran's right hip. As such, the Veteran's right hip pain does not qualify as a current diagnosis. In the absence of a current disability, service connection cannot be granted on a direct or secondary basis. As the preponderance of the evidence weighs against the claim, the benefit of the doubt is not for application and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for plasmacytomas (also claimed as multiple myeloma). The Board cannot make a fully informed decision on the issue of service connection for plasmacytomas (also claimed as multiple myeloma). The Veteran contends that as an ammunition specialist he was exposed to chemicals that caused him to develop multiple myeloma. He asserts that while assigned to the 64th Ordinance in Germany from 1979 to 1981 he handled nuclear weapons and cleaned and maintained the bunkers where nuclear weapons were stored. May 16, 2008, Statement in Support of Claim. The Veteran submitted a radiation risk activity information sheet in August 2012 where he indicates exposure occurred while stationed in Germany from 1980 to 1982. In support of his contention of working around nuclear weapons during this timeframe, the Veteran referenced a Certificate of Achievement dated October 1981 commending his participation in daily training in preparation for the Brigade Surety Evaluation and the Defense Nuclear Agency's Nuclear Surety Inspection (NSI) which enabled a rating of excellent on the NSI. In June 2018, the Veteran's private physician opined that it was likely that the Veteran's multiple myeloma was a result of the Veteran's exposure to ionizing radiation during service. June 6, 2018, Medical Treatment Record. A review of the record demonstrates that the RO has not made a sufficient attempt to verify dose estimates for all the years the Veteran participated in nuclear inspections. While the record contains a March 2009 dosimetry report regarding potential exposure to ionizing radiation for the period from July 1985 to August 1985, there is no showing that a report was obtained for the years between 1979 and 1981. The Board finds that a remand is warranted to attempt to verify the Veteran's assertions of radiation exposure in compliance with 38 C.F.R. § 3.311. 2. Entitlement to service connection for mild degenerative joint disease of the lumbar spine with spondylosis. 3. Entitlement to service connection for a bilateral ankle condition. The Board finds that the issues of service connection for mild degenerative joint disease of the lumbar spine with spondylosis and service connection for a bilateral ankle condition are inextricably intertwined with the claim for service connection for plasmacytomas (also claimed as multiple myeloma). The Veteran was afforded VA examinations in October 2019. The examiner rendered negative etiology opinions based on the theory of secondary service connection due to service-connected right knee disorder. In rendering his opinions, the examiner suggested that mild degenerative joint disease of the lumbar spine with spondylosis and bilateral ankle condition were more likely due to multiple myeloma and aging rather than the service-connected right knee condition. In addition, with respect to service connection for mild degenerative joint disease of the lumbar spine with spondylosis, the Veteran testified that during service he pulled his back doing sit-ups and stuff but did not go to sick hall because he was trying to get a promotion. January 30, 2018, Hearing Transcript. The Veteran further testified that lifting 50-pound ammunition boxes several times a week also contributed to his mild degenerative joint disease of the lumbar spine with spondylosis. The Board finds that a remand is also necessary to obtain an opinion addressing the theory of direct service connection for mild degenerative joint disease of the lumbar spine with spondylosis based on the Veteran's contentions during his Board hearing. 4. Entitlement to service connection for diabetes mellitus, type II, as secondary to service-connected posttraumatic stress disorder with depressive disorder and under 38 USC 1151 for diabetes mellitus, type II is remanded. The Board is unable to make a fully informed decision on the issue of entitlement to service connection for diabetes mellitus, type II. The Veteran originally filed a claim for service connection for diabetes in November 2011 asserting that Zyprexa (Olanzapine) caused his diabetes. At the time of filing, the Veteran was not service connected for any psychological condition; therefore, the claim was recharacterized as a claim for compensation under 38 U.S.C. § 1151. In an October 2014 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) with depressive disorder effective August 23, 2013. In light of the October 2014 rating decision, the Board finds that this claim should also be evaluated as a secondary service connection claim, as originally filed by the Veteran. Specifically, the Veteran contends that medication prescribed to treat his now service-connected PTSD with depressive disorder caused him to develop diabetes mellitus, type 2. The Veteran was prescribed Zyprexa in March 2008 for treatment of depression. In June 2009, Zyprexa was increased from 5 mg at hours of sleep to 7.5 mg at hours of sleep for combination treatment for mood. During this visit, laboratory testing revealed the Veteran's glucose was high at 115 mg/dL and the clinician noted Zyprexa may be worsening his lipid profile. During a November 2009 visit, the clinician discontinued Zyprexa due to increased prolactin level and breast soreness and prescribed Seroquel for depression. December 2009 laboratory testing revealed the Veteran's glucose remained high at 135 mg/dL. In June 2010, the Veteran complained of dizziness when standing and laboratory testing showed a non-fasting glucose level of 298 mg/dL. During an August 16, 2010 encounter, the Veteran complained of feeling dizzy in the morning when he gets up and Seroquel making his mouth too dry. The clinician discussed stopping Seroquel temporarily and then reevaluating. Just over a week later, the Veteran was admitted to the hospital due to elevated blood glucose and diagnosed with new onset diabetes mellitus, type II. Id. The Board notes that the Veteran was also prescribed Xanax and Celexa for treatment of psychological symptoms prior to onset of diabetes mellitus, type II. In Frost v. Shulkin, the U.S. Court of Appeals for Veterans Claims (Court) held that there is not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis. 29 Vet. App. 131, 138-39 (2017). The Court explained that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Id. The Board finds that a remand is warranted to obtain an opinion addressing the theory of secondary service connection due to posttraumatic stress disorder with depressive disorder and to allow the RO to complete any additional development deemed necessary. In addition, a remand is warranted as the claim for entitlement to diabetes mellitus, type II is also inextricably intertwined with the claim for entitlement to service connection for plasmacytomas (also claimed as multiple myeloma). The October 2019 examiner opined that the Veteran's diabetes mellitus was more likely than not due to multiple myeloma. The matters are REMANDED for the following action: 1. Develop the Veteran's claims of entitlement to service connection for plasmacytomas (also claimed as multiple myeloma) pursuant to the provisions of 38 C.F.R. § 3.311 and obtain a dose estimate from VA's Under Secretary for Health based on the Veteran's reported exposure to ionizing radiation from nuclear weapons during his work as an ammunition specialist between 1979 and 1982. (a.) If it is determined by the dose estimate that the Veteran was exposed to ionizing radiation, the case must be referred to the VA Under Secretary for Benefits for further consideration. (b.) If it is determined by the dose estimate that the Veteran was not exposed to ionizing radiation, obtain a medical opinion from an appropriate clinician as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's plasmacytomas (also claimed as multiple myeloma) manifested during or is otherwise related to the Veteran's period of active service. 2. Obtain a medical opinion from the appropriate clinician regarding the etiology of the Veteran's mild degenerative joint disease of the lumbar spine with spondylosis. The examiner should review the claims file and address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's mild degenerative joint disease of the lumbar spine with spondylosis (1) manifested during active service or is otherwise related to an in-service injury, event, or disease, (2) manifested within one year after discharge from service, or (3) was noted in service with continuity of the same symptomatology since service. The examiner must specifically acknowledge and consider the Veteran's testimony that he pulled his back during service but did not report it because he was seeking a promotion and that lifting 50-pound boxes of ammunition several times a week contributed to his current disability. 3. Obtain a medical opinion from the appropriate clinician regarding the etiology of the Veteran's diabetes mellitus, type II. The examiner should review the claims file and address the following. (a.) Whether it is at least as likely as not that current diabetes mellitus, type II was proximately caused by service-connected posttraumatic stress disorder with depressive disorder, to include the treatment thereof. The examiner must specifically address the Veteran's use of Zyprexa (Olanzapine), Xanax (Alprazolam), Celexa (Citalopram), and Seroquel (Quetiapine). The examiner is reminded that the primary disability, posttraumatic stress disorder with depressive disorder, need not be service connected, or even diagnosed, at the time the secondary condition, diabetes mellitus, type II was incurred. (b.) Whether it is at least as likely as not that current diabetes mellitus, type II has been aggravated (i.e., worsened beyond the normal progression of that disease) by service-connected posttraumatic stress disorder with depressive disorder, to specifically include the treatment thereof. 4. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. 5. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.