Citation Nr: 18150088 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-15 877 DATE: November 14, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma, has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for major depressive disorder has been received and the claim is reopened. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma and to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for hypertension, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a right-hand finger disorder, claimed as numb fingers, and to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for a neurobehavioral disorder, to include memory loss and to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT 1. A May 1980 rating decision denied entitlement to service connection for an eye disorder. Evidence received subsequent to May 1980 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma. 2. A June 1999 rating decision denied entitlement to service connection for major depressive disorder. Evidence received subsequent to June 1999 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for major depressive disorder. 3. Resolving reasonable doubt in the Veteran’s favor, major depressive disorder is at least as likely as not related to service. 4. The Veteran’s sleep apnea was aggravated beyond its natural progression by service-connected major depressive disorder. CONCLUSIONS OF LAW 1. Evidence received since the May 1980 rating decision is new and material and the Veteran’s claim of entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the June 1999 rating decision is new and material and the Veteran’s claim of entitlement to service connection for major depressive disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for sleep apnea as secondary to service-connected major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1978 to December 1979. A hearing was not requested. New and Material Evidence Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma In May 1980, the RO denied the Veteran’s claim of entitlement to service connection for an eye disorder. Part of the reason for this denial was that the Veteran’s cataracts existed prior to service and was not incurred in service or aggravated by service beyond the normal progress of the disorder. The RO refused to reopen the Veteran’s claim in subsequent rating decisions dated March 2002, May 2006, and December 2009. A July 2013 VA medical record indicates a history of glaucoma. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for major depressive disorder In June 1999, the RO denied the Veteran’s claim of entitlement to service connection for depression. Part of the reason for this denial was that there was no evidence of in-service incidence. The RO refused to reopen the Veteran’s claim in decisions dated March 2002 and May 2006. In July 2012, the RO denied a separate claim of entitlement to service connection for PTSD, also on the basis that there was no evidence of in-service incidence. The Veteran has submitted an October 2015 private medical opinion that provides a nexus between the Veteran’s depressive disorder and service. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence that is sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). 3. Entitlement to service connection for major depressive disorder The Veteran is entitled to service connection for major depressive disorder. An October 2015 private medical opinion (received 8/1/16, pages 11–13 of 90) contains a diagnosis of major depressive disorder. The opinion contains statements from the Veteran and his sister describing how the Veteran was not depressed before service but became depressed during and after service. Though not specifically stated, this depression also appears to be somewhat related to his medical discharge. Based on the uncontroverted statements about the Veteran’s change in demeanor and his current diagnosis, the October 2015 private medical examiner concludes that the Veteran’s major depressive disorder “more likely than not began in military service.” This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). As there is no opinion to the contrary, the Board finds that the evidence supports the existence of a nexus between major depressive disorder and service. The Veteran is entitled to prevail with respect to his claim. 4. Entitlement to service connection for sleep apnea The Veteran is entitled to service connection for sleep apnea as secondary to major depressive disorder. The first element of secondary service connection is satisfied, in that a March 2016 VA medical record lists “Sleep Apnea” as one of the Veteran’s problems. The second element, nexus, is also satisfied. A July 2016 private medical opinion (received 8/1/16, page 82 of 90) states that “it is more likely than not the Veteran’s major depressive d/o aided in the development of and aggravates” the Veteran’s sleep apnea. This conclusion is based primarily on a number of peer-reviewed studies cited by the examiner, which indicate that psychiatric disorders are commonly associated with sleep apnea. This medical opinion is probative because it is based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. As the elements of secondary service connection are satisfied, the Veteran is entitled to prevail with respect to his claim. REASONS FOR REMAND A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma and to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. These elements are satisfied with regard to the claim of entitlement to service connection for an eye disorder, to include lens opacities, cataracts, and glaucoma and to include as a result of exposure to contaminated water at Camp Lejeune. Regarding the first element, a July 2013 VA medical record indicates a history of glaucoma. Regarding the second element, the Veteran argues that this is the result of exposure to contaminated water at Camp Lejeune. Regarding the third and fourth elements, there is an indication that an eye disorder could be related to exposure to contaminated water, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. On remand, a medical opinion is required to assess whether there is clear and unmistakable evidence that cataracts existed before service and whether there is clear and unmistakable evidence that cataracts were not aggravated beyond their natural progression by service. The Veteran’s August 1978 entrance examination (received 1/5/15, page 56 of 60) notes 20/100 vision in the right eye but makes no reference to any specific eye disorder. A September 1978 service treatment record (received 1/5/15, page 41 of 60) indicates a cataract. An April 1979 service treatment record (received 1/5/15, page 13 of 60) states: “early cataracts – would not make a good candidate for mil[itary] duty.” A July 1979 service treatment record (received 1/5/15, page 16 of 60) indicates “developing lenticular opacity.” A medical opinion is required that addresses this evidence. 2. Entitlement to service connection for hypertension, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for hypertension. Regarding the first element, VA medical records indicate treatment for hypertension. Regarding the second element, the Veteran argues that this could be the result of exposure to contaminated water at Camp Lejeune. Regarding the third and fourth elements, there is an indication that hypertension could be related to exposure to contaminated water at Camp Lejeune, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 3. Entitlement to service connection for a right-hand finger disorder, claimed as numb fingers, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. The McLendon elements are also satisfied with regard to the claim of entitlement to service connection for a right-hand finger disorder, claimed as numb fingers. Regarding the first element, the Veteran is entitled to testify regarding numb fingers because this symptom is within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Regarding the second element, the Veteran argues that this is the result of exposure to contaminated drinking water at Camp Lejeune. Regarding the third and fourth elements, there is an indication that a hand disorder could be related to exposure to contaminated drinking water at Camp Lejeune, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. 6. Entitlement to service connection for a neurobehavioral disorder, to include memory loss and to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. An April 2014 VA medical record (received 3/1/16, page 94 of 114) indicates that the Veteran is receiving social security disability benefits. The Veteran’s Social Security Administration (SSA) records are not associated with the claims file, and those records may be relevant to the Veteran’s remaining claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (holding that the duty to assist requires obtaining Social Security records of which the Board has notice). Therefore, the Veteran’s records from SSA should be obtained. As these records may impact the disposition of the Veteran’s remaining claims, a remand is required. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from March 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. If no records are available, the claims folder must indicate this fact. 2. Obtain all VA treatment records from March 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed eye disorder, to include lens opacities, cataracts, and glaucoma. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed eye disorder, to include lens opacities, cataracts, and glaucoma; (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed eye disorder, to include lens opacities, cataracts, and glaucoma, was incurred in the Veteran’s service; and (c.) Whether there is clear and unmistakable evidence that a cataracts disorder pre-existed service and whether there is clear and unmistakable evidence that a cataracts disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. In rendering these opinions, the examiner should consider the Veteran’s August 1978 entrance examination (received 1/5/15, page 56 of 60), which notes 20/100 vision in the right eye. The examiner should also consider the September 1978 service treatment record (received 1/5/15, page 41 of 60) indicating a cataract. The examiner should also consider the April 1979 service treatment record (received 1/5/15, page 13 of 60) indicating “early cataracts.” The examiner should also consider the July 1979 service treatment record (received 1/5/15, page 16 of 60) indicating “developing lenticular opacity.” The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed hypertension or right-hand finger disorder (claimed as numb fingers). The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed hypertension or right-hand finger disorder (claimed as numb fingers); and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed hypertension or right-hand finger disorder (claimed as numb fingers) was incurred in the Veteran’s service, including but not limited to as a result of exposure to contaminated drinking water at Camp Lejeune. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel