Citation Nr: 18139933 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-12 096A DATE: October 1, 2018 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for multiple joint arthritis is remanded. Entitlement to service connection for left eye glaucoma is remanded. Entitlement to service connection for a breathing disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for colon cancer is remanded. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder, depressive disorder, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial rating in excess of 40 percent for limited extension and patellar tendonitis of the right knee, is remanded. Entitlement to a rating in excess of 40 percent for limited extension, status post arthroscopic surgery, and chondromalacia patella of the left knee, is remanded. FINDINGS OF FACT 1. In an unappealed July 2004 decision, entitlement to service connection for sleep apnea was denied. 2. The evidence associated with the claims file since the July 2004 decision relates to unestablished facts necessary to substantiate the claim for service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for sleep apnea are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1982 to July 1985, and from December 1987 to September 1990 in the United States Marine Corps. He also had active duty for training (ACDUTRA) from June 1980 to August 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. In a July 2004 rating decision, the claim was denied, in part, because there was no evidence of a current disability. Since then, VA treatment records note evidence of a diagnosis of sleep apnea. The Board finds that evidence new and material. Therefore, the claim is reopened. REASONS FOR REMAND In April 2013, the Veteran requested that VA obtain treatment records from Tripler Army Medical Center from 1980 to the present. Because those records may be relevant to his claim, the Board finds that a remand is necessary so that an attempt can be made to obtain them. Regarding the claim for service connection for a psychiatric disorder, in March 2014, a private psychologist opined that the Veteran had a depressive disorder secondary to his service-connected right and left knee disabilities. However, VA treatment records dated in September 2014 and October 2014 indicate that the Veteran did not display any evidence of depression. Therefore, the Board finds that a remand is necessary for a VA examination. Regarding the Veteran’s claims for service connection for sigmoid colon cancer, left eye glaucoma, breathing disability, and multiple joint arthritis, he maintains that those disabilities are related to water contamination at Camp Lejeune and Johnson Island. See May 2013 statement. His service treatment records indicate that he was at Camp Lejeune in 1983. Therefore, the Board finds that a remand is necessary for VA examinations. In addition, the Board finds that a VA examination would be helpful in making a determination on the claim for service connection for sleep apnea. Regarding the claims for increased ratings for right and left knee disabilities, the most recent VA examination report does not include detailed range of motion findings or findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board finds that a remand is necessary for an additional VA examination. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. This should include treatment records from Tripler Army Medical Center from 1980 to the present. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any psychiatric disorder that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present psychiatric disorder is caused or chronically worsened by the Veteran’s service-connected right and left knee disabilities. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his colon cancer. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the Veteran’s colon cancer is etiologically related to his active service, to include water contamination at Camp Lejeune. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any left eye glaucoma that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present left eye glaucoma is etiologically related to the Veteran’s active service, to include water contamination at Camp Lejeune. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any breathing disability that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present breathing disability is etiologically related to the Veteran’s active service, to include water contamination at Camp Lejeune. In rendering the above opinion, the examiner should address the March 1990 X-ray that showed a few scattered calcifications, which were thought to be old granulomas. A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any multiple joint arthritis that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present multiple joint arthritis is etiologically related to the Veteran’s active service, to include water contamination at Camp Lejeune. A rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any sleep apnea that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present sleep apnea is etiologically related to his active service, to include water contamination at Camp Lejeune. A rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left knee disabilities. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran’s ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide any of the requested findings without resorting to speculation, the examiner must state why that is so and provide a detailed rationale as to the reason why the requested findings could not be provided. 9. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 10. Then, readjudicate the remaining issues on appeal and allow appropriate time for response. Then, if warranted, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel