Citation Nr: 22051152 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 18-28 340A DATE: September 8, 2022 ORDER Entitlement to service connection for a lumbar paraspinal strain (claimed as back with degenerative arthritis) is granted. Entitlement to service connection for nerve damage of the left lower extremity is granted. Entitlement to service connection for a somatization disorder is granted. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, competent medical evidence indicates that the Veteran's lumbar paraspinal strain (claimed as back with degenerative arthritis) is related to his active duty service. 2. The evidence supports a finding that the Veteran's current nerve damage of the left lower extremity is proximately due to or a result of his now service-connected lumbar paraspinal strain. 3. The evidence supports a finding that the Veteran's current somatization disorder is proximately due to or a result of his now service-connected lumbar paraspinal strain. 4. The Veteran's sleep apnea is not related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar paraspinal strain (claimed as back with degenerative arthritis) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for nerve damage of the left lower extremity have been 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 a somatization disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for sleep apnea have not been 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 served in the Army from January 1979 to March 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 and August 2016 Regional Office (RO) rating decision. The Veteran testified at a January 2022 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection 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 nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a lumbar paraspinal strain (claimed as back with degenerative arthritis) The Veteran is seeking service connection for a lumbar strain. Specifically, he contends that his lumbar strain is a result of an injury that he sustained during military training. A review of the Veterans service treatment records demonstrate the Veteran sought treatment for lower back pain in February 1979. Additionally, a medical treatment note in March 1979 reveals that the Veteran complained that he was unable to sleep due to back pain. Post-service treatment records show treatment for back pain from 2012 through 2020. Additionally, the Veteran testified during his January 2022 Board hearing that he has been going to pain management for the last three to four years to get shots in his back. In August 2014, the Veteran was afforded a VA examination. The examiner opined that the Veteran's lumbar strain was less likely than not incurred in or caused by his military service. Specifically, the examiner stated that the Veteran had an injury prior to service and there was no significant injury while in the service that exacerbated the Veterans underlying lumbago. Further, the examiner stated that the Veterans recent MRI shows mild degenerative changes that are consistent with the patient's previous injury and the natural course of disease progression given the patient's age. However, the Board notes that the Veterans entrance examination does not note any pre-existing back conditions and the Veteran was noted to be in good health. Additionally, while a history of an auto accident two years prior is noted on the January 1979 entrance physical standards board proceedings form, the Veterans condition is noted as the same on enlistment physical examination except for low back pain and complaints of the inability to sleep due to back pain. Finally, the August 2014 VA examiner did not consider whether the Veterans lumbar strain was aggravated by his reported in service injuries to his lumbar spine. Therefore, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar strain is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for his lumbar strain is warranted. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. 2. Entitlement to service connection for nerve damage of the left lower extremity 3. Entitlement to service connection for a somatization disorder The Veteran is seeking service connection for nerve damage to his left lower extremity and a somatization disorder. Specifically, he contends that these conditions are secondary to his lumbar strain. The Veteran underwent a VA examination for peripheral nerve conditions in July 2016. The examiner found that the Veteran did not have a diagnosis of a peripheral nerve condition or peripheral neuropathy, but had symptoms attributable to any peripheral nerve conditions. Specifically, the Veteran exhibited moderate intermittent pain of the left lower extremity, mild paresthesias and/or dysesthesias of the left lower extremity, and mild numbness of the left lower extremity. The examiner opined that the Veterans leg pain was less likely than not related to his military service. The examiner stated that a single note from February 20, 1979 indicated pain in the right leg and the diagnosis was paraspinal strain. However, he concluded that it was less likely that the Veterans current lumbar radiculopathy is related to his remote active service of two months. The Veterans treatment records from 2012 indicate complaints from the Veteran of pain radiating down from his back. Additionally, the remainder of the Veterans treatment records contain complaints of lower extremity neuropathic pain. The Board finds that the July 2016 VA examiner did not provide a complete rationale for his opinion that the Veterans current nerve pain was not related to his spine condition. Instead, the examiner based his opinion on the amount of time the Veteran served in the military. The Veteran underwent a mental disorder VA examination in July 2016. The Veteran was diagnosed with Somatic Symptom Disorder with predominant pain. The examiner opined that the Veterans somatization disorder was at least as likely as not proximately due to or caused by his chronic pain associated with his back problems. In support of this opinion, the examiner noted that the Veteran's complaints of chronic pain and sleep disturbance were noted while the veteran was in the military and the symptoms of the conditions overlap, exacerbate, and feed into each other making it impossible to separate out the different components at this time. As noted above, service connection for the Veteran's lumbar strain has been granted herein. Accordingly, after resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for nerve damage of the left lower extremity and a somatization disorder as secondary to a lumbar strain is warranted. 4. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is related to his military service. The question for the Board is whether the Veteran has a current disability that is due to his military service. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the weight of the evidence is against finding that the Veteran's sleep apnea is proximately due to service. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran's service treatment records are silent for complaints of, symptoms of, or a diagnosis of sleep apnea. A March 1979 treatment note reflects that the Veteran was unable to sleep, however it was due to his low back pain. Next, the Veterans post service treatment records do not show complaints of a sleep disorder until 2012 when he was diagnosed with obstructive sleep apnea. As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. While the Veteran is not competent diagnose a disorder such as sleep apnea, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, the Board determines service connection cannot be granted in this case based on the Veteran's statements alone. Specifically, the Veteran submitted a claim for VA benefits in 2012 where he did not mention sleep apnea. In the Board's view, if the Veteran had been experiencing continuous symptoms since service, he would have included this issue at that time. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. The Veteran underwent a VA examination in July 2016 for his sleep apnea (OSA). The VA examiner opined that the Veterans sleep apnea was less likely than not a result of his military service. Specifically, the examiner stated that the Veteran was diagnosed in 2012, 4 decades after service. Further, the examiner stated that while difficulty sleeping was mentioned on single note in 1979, it was due to pain, not obstructive sleep apnea. The Board recognizes the statements from the Veteran attributing his sleep apnea to his active duty service. While the Veteran believes his sleep apnea is proximately due to or the result of his military service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examination. Thus, the Veteran's claim for service connection for sleep apnea is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica