Citation Nr: 21027308 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-41 186 DATE: May 5, 2021 ORDER Service connection for lumbar strain is granted. Service connection for sleep apnea as secondary to service-connected major depressive disorder is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a lumbar strain. 2. The Veteran injured the lumbar spine in service, and was diagnosed with a lumbar strain in service. 3. The current lumbar strain is causally connected to the injury and lumbar strain in service. 4. The Veteran has a current diagnosis of sleep apnea. 5. The Veteran is service connected for major depressive disorder. 6. The sleep apnea is not caused by, or increased in severity beyond the natural progress of the disease by, the major depressive disorder. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar strain have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for sleep apnea, including as secondary to service-connected major depressive disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force during the Gulf War Era and Peacetime from February 1981 to February 2001. The April 2015 Rating Decision denying sleep apnea and the January 2017 Rating Decision denying the lumbar strain are the subjects of the current decision. In October 2000, during service, the Veteran first brought a claim for service connection for the lumbar strain during the separation process from service. The claim was denied in an April 2002 Rating Decision, which the Veteran did not appeal, so became final. In March 2016, the Veteran filed a claim to reopen service connection for the lumbar strain. The new claim was denied in a January 2017 Rating Decision. The Veteran filed a timely Notice of Disagreement for the lumbar strain. In October 2014, the Veteran first brought a claim service connection for sleep apnea. The claim was denied in an April 2015 Rating Decision. The Veteran filed a timely Notice of Disagreement for the sleep apnea. 1. Service connection for lumbar strain is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran contends that she injured the lumbar spine during service after lifting a case of sodas, and has generally contended that low back symptoms have been present since that in-service low back strain injury. The Veteran reports or testifies that she treated the back symptoms without professional medical treatment until years after service. The evidence shows a current disability of a lumbar strain. A VA examination in August 2016 resulted in a diagnosis of lumbar strain. Regarding the element of in-service injury, the Veteran sustained a back injury during service in 1993 and again was diagnosed with lumbar strain in November 2000 near the time of service separation in February 2001. The Veteran has reported and testified to injuring the low back after lifting a case of sodas in service. Service treatment records show that in January 1993 the Veteran reported lumbar pain after lifting a case of sodas. The Veteran applied for prospective compensation benefits during the service separation process in October 2000. An in-service VA examination in November 2000 diagnosed lumbar strain. After weighing the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the current lumbar strain is causally connected to the in-service low back injury diagnosed as lumbar strain. Notwithstanding an absence of documented medical treatment, the Veteran has credibly reported continued low back symptoms since service to the present. She reported treating the lumbar strain with over-the-counter medication, specifically Motrin. See January 2017 Notice of Disagreement. While a VA examiner in August 2016 opined that there was no connection between the current lumbar strain and the injury in service, the examiner's rationale that there was a singular occurrence in service that resolved is factually inaccurate, as there was a subsequent diagnosis of lumbar strain in 2000, the Veteran reported low back problems near the end of service, and even filed a claim for VA compensation for low back disability while still in service. The VA examiner's opinion relies almost entirely on an absence of medical treatment records, while omitting the 2000 diagnosis of lumbar strain. The rationale appeared to exclude the November 2000 in-service diagnosis of lumbar strain, which negates that rationale that there was only a singular occurrence of back issues in service. Similarly, the examiner noted the lack of chronic treatment in medical records, but failed to take into consideration the chronic symptoms the Veteran was treating with Motrin. For these reasons, the Board finds that this opinion is inadequate, has no probative value. In September 2019, the Veteran obtained a private nexus opinion to the effect that the current lumbar strain was directly connected to service. While this private opinion did not explicitly state the rationale in support, the factual context provides such rationale. In this case the Veteran sustained a low back injury in service, was again diagnosed with the same back problem near the end of service, reported taking over the counter remedies for the back pain, and even filed a claim for service connection while still in service, which represents the presence of back symptoms at that time. The record shows no intercurrent injuries or other reasonable explanation for the low back disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for the lumbar strain have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As direct service connection is being granted, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service connection for sleep apnea is denied. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran contends that the current sleep apnea is caused by (secondary to) the service-connected major depressive disorder. See March 2016 Notice of Disagreement. The evidence shows a current diagnosis of sleep apnea. A home sleep study in January 2020, 19 years after service, resulted in the diagnosis of sleep apnea. Another sleep study confirmed the diagnosis of sleep apnea in January 2020. The weight of the evidence shows that the current sleep apnea is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected major depressive disorder. A VA examination in May 2020 resulted in the opinion that there is no nexus between the current sleep apnea and the service-connected major depressive disorder. The rationale for the opinion is that depression is not a risk factor for sleep apnea. (Continued on the next page) For the reasons described above, the Board finds that a preponderance of the lay and medical evidence is against the Veteran's claim for service connection for sleep apnea, including as secondary to service-connected disabilities. For these reasons, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.