Citation Nr: 18148327 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-42 093 DATE: November 8, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral knee pain is reopened; to that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for left eye conjunctivitis (claimed as post-injury, corneal scarring, left eye) is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral knee pain is remanded. Entitlement to service connection for left eye conjunctivitis (claimed as post-injury, corneal scarring, left eye) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to a disability rating in excess of 10 percent for service connected degenerative arthritis of the right hand is remanded. FINDINGS OF FACT 1. The Veteran did not submit a notice of disagreement or substantive appeal (VA Form 9) for the June 2001, January 2003, and October 2006 rating decisions denying service connection for bilateral knee pain; therefore, the rating decisions became final. 2. The Veteran did not submit a notice of disagreement or substantive appeal (VA Form 9) for the June 2001, January 2003, June 2003, and July 2007 rating decisions denying service connection for left eye conjunctivitis; therefore, the rating decisions became final. 3. Additional evidence, considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denials and raises a reasonable possibility of substantiating the claims for service connection for bilateral knee pain and left eye conjunctivitis. CONCLUSIONS OF LAW 1. The June 2001, January 2003, and October 2006 rating decisions denying the claim for service connection for bilateral knee pain are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the last prior final denial is new and material to reopen the claim for service connection for bilateral knee pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The June 2001, January 2003, June 2003, and July 2007 rating decisions denying the claim for service connection for left eye conjunctivitis are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Evidence received since the last prior final denial is new and material to reopen the claim for service connection for left eye conjunctivitis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to October 1985. In this case, the Veteran did not submit a Notice of Disagreement in response to the June 2001, January 2003, and October 2006 rating decisions denying service connection for bilateral knee pain; therefore, the rating decisions became final. The Veteran also did not submit a Notice of Disagreement in response to the June 2001, January 2003, June 2003, and July 2007 rating decisions denying service connection for left eye conjunctivitis; therefore, the rating decisions became final. Evidence received since those decisions includes May 2018 correspondence from the Veteran’s representative and a September 2016 VA eye examination. This evidence is new to the record, relates to a previously unestablished nexus to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claims are reopened, and any deficiencies of notification and development in this case will be addressed on remand. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee pain is remanded. The Veteran contends that his bilateral knee pain is a result of cellulitis he experienced in service. He has not undergone a VA examination to determine the nature and etiology of his bilateral knee pain. Therefore, the Board finds that a VA examination is necessary prior to adjudication of the Veteran’s claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for left eye conjunctivitis is remanded. The Veteran was afforded a VA examination for his left eye conjunctivitis in September 2016. The examiner contradictorily reported that there was no evidence of a “left eye condition” on examination, but noted that Veteran had diagnoses of bilateral dry eye syndrome and age-related nuclear sclerosis. In addition, a review of medical records show that the Veteran has consistently, and is currently, using eye drops for bilateral dry eye syndrome. Therefore, the Board finds that an addendum opinion is necessary to clarify whether the Veteran’s in-service conjunctivitis is related to his current bilateral dry eye syndrome. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran was afforded a VA examination in September 2016 to determine the nature and etiology of his acquired psychiatric disorder; however, the Board finds it inadequate for adjudication purposes. Notably, the examiner found that the Veteran did not meet the diagnostic criteria for PTSD, but did not opine on whether the Veteran’s adjustment disorder and/or depression was related to his military service. As such, a remand is necessary for a new VA examination. 4. Entitlement to service connection for insomnia is remanded. The evidence of the record shows that the Veteran has a confirmed diagnosis of insomnia, which he contends is secondary to his service-connected PTSD. See January 2016 Psychiatry Outpatient Follow-Up Note; May 2018 Representative Correspondence. The Veteran has not been afforded a VA examination to determine the nature and etiology of his insomnia, to include whether it is caused or aggravated by his service-connected PTSD. Therefore, a VA examination to address this issue is warranted on remand. 5. Entitlement to a disability rating in excess of 10 percent for service connected degenerative arthritis of the right hand is remanded. The Veteran has not had a VA examination to assess the severity of his service-connected degenerative arthritis of the right hand since September 2016. While the mere passage of time is not a basis for requiring a new examination, review of the record indicates that the Veteran’s disability has worsened. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see e.g. May 2018 Representative Correspondence. Therefore, the Board also finds that a remand is necessary to assess the current severity of the Veteran’s service-connected right hand disorder. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. After completing the requested development, afford the Veteran a VA orthopedic examination to evaluate the nature and etiology of his bilateral knee pain and the symptoms and severity of his right hand disorder. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be addressed. Based on a review of the results of the Veteran’s physical examination, the Veteran’s statements regarding the development and treatment of his disabilities, and a thorough review of the claims file, the examiner should determine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s bilateral knee pain began in service or is otherwise related to his in-service cellulitis. In assessing the current symptoms and severity of the Veteran’s degenerative arthritis of the right hand, in line with the pertinent Disability Benefits Questionnaire, the examiner is asked to address the extent to which the functional impairment caused by the Veteran’s right hand disability impairs his ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which such impairment arose. A complete rationale for any opinion provided is requested. 3. Afford the Veteran a VA mental health examination to evaluate the nature and etiology of his acquired psychiatric disorder, to include PTSD, and insomnia. A copy of this remand and all relevant medical records should be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be addressed. Based on a review of the results of the Veteran’s examination, the Veteran’s statements regarding the development and treatment of his disabilities, and a thorough review of the claims file, the examiner should answer the following questions: (a.) Does the Veteran have a diagnosis of PTSD under the DSM-5? (b.) If the answer to (a) is yes, then is it at least as likely as not (a 50 percent probability or greater) that PTSD is related to an incident in military service? (c.) For any psychiatric diagnoses other than PTSD, including an adjustment disorder and depression, is it at least as likely as not (fifty percent probability or greater) that the Veteran’s disability began in service or is otherwise related to a disease, event or injury in service? (d.) If an acquired psychiatric disorder is found to be related to active duty service, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s insomnia is caused or aggravated by his acquired psychiatric disorder? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of insomnia by the service-connected acquired psychiatric disorder. (e.) If the answers to the previous questions are negative, and irrespective of whether the Veteran’s acquired psychiatric disorder, to include PTSD, is found to be related to service, is it at least at likely as not (a fifty percent probability or greater) that the Veteran’s insomnia began in service, or is otherwise related to a disease, event, or injury in service? A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. 4. Obtain an addendum opinion from an appropriate VA clinician to determine the nature and etiology of the Veteran’s left eye disability. The entire claims file must be made available, and the addendum opinion should include discussion of the Veteran’s documented medical history and assertions. After a thorough review of the claims file, the examiner should determine whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s current left eye disability began in service or is otherwise related to his in-service conjunctivitis. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel