Citation Nr: 18150208 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-36 964 DATE: November 14, 2018 ORDER As new and material evidence has been received to reopen the claim of service connection for a right knee disability, to include right knee degenerative joint disease, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a left knee disability, to include left knee degenerative joint disease, the appeal to this extent is allowed. REMANDED Entitlement to service connection for a right knee disability, to include right knee degenerative joint disease, is remanded. Entitlement to service connection for a left knee disability, to include left knee degenerative joint disease, is remanded. Entitlement to service connection for a right shoulder disability, to include right shoulder osteoarthritis with trapezius muscle strain, is remanded (claimed as right arm condition). Entitlement to service connection for a cervical spine disability, to include cervical spondylosis, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating higher than 50 percent for depressive and anxiety disorder is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed rating decision in July 2010, the regional office (RO) denied entitlement to service connection for right knee degenerative joint disease. 2. Evidence received since the July 2010 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim. 3. In an unappealed rating decision in July 2010, the regional office (RO) denied entitlement to service connection for left knee degenerative joint disease. 4. Evidence received since the July 2010 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied entitlement to service connection for right knee degenerative joint disease is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted since the last previous denial in July 2010 and, the claim of service connection for a right knee disability to include right knee degenerative joint disease, is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The July 2010 rating decision that denied entitlement to service connection for left knee degenerative joint disease is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been submitted since the last previous denial in July 2010 and, the claim of service connection for a left knee disability to include left knee degenerative joint disease, is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1972 to August 1976. The RO in a July 2010 rating decision denied service connection for degenerative joint disease of the right knee and left knee. The Veteran subsequently in December 2011 filed a claim of service connection for right and left knee conditions. Thus, the Board is broadening the scope of these claims because they turn upon essentially the same history, factual bases, and claimed symptomatology that were considered in the prior final rating decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). The Board also has broadened the scope of the other service connection claims currently on appeal as reflected above. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Issues 1-2: Whether new and material evidence has been received to reopen claims of entitlement to service connection for right knee disability, to include degenerative joint disease, and left knee disability, to include degenerative joint disease. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO in a July 2010 rating decision denied service connection for degenerative joint disease of both knees based on the determination that the condition neither occurred in nor was caused by service. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights. He did not appeal the RO’s decision and additional new and material evidence was not received within a year following this decision. See 38 C.F.R. § 3.156(b). That decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the July 2010 rating decision includes the Veteran’s April 2017 testimony at a Board hearing before the undersigned whereby the Veteran, through his attorney, contended that arthritis in his knees is directly related to his exposure to contaminated water during his service at Camp Lejeune. The attorney indicated that arthritis in both knees was subjected to the neurobehavioral effects of the contaminated water and a medical opinion needed to be obtained to address this matter. The evidence received is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims of service connection for right knee degenerative joint disease and left knee degenerative joint disease as it raises the question of whether the disabilities were caused by the contaminants in the water supply at Camp Lejeune. The credibility of the evidence is presumed for the purposes of reopening the claims of service connection for disabilities of the knees to include right knee degenerative joint disease and left knee degenerative joint disease.   REASONS FOR REMAND Issues 3-10: Entitlement to service connection for: right knee disability to include degenerative joint disease, left knee disability to include degenerative joint disease, right shoulder disability to include osteoarthritis with trapezius muscle strain, cervical spine disability to include spondylosis, and sleep apnea; and entitlement to a rating higher than 50 percent for depressive and anxiety disorder, entitlement to a compensable rating for allergic rhinitis, and entitlement to TDIU. As for the issues of service connection for disabilities to include right knee degenerative joint disease, left knee degenerative joint disease, cervical spine disability, and sleep apnea the Board cannot make a fully-informed decision. The Veterans contends that these disabilities are the result of the contaminated water that he was exposed to during his service in Camp Lejeune and the neurobehavorial effects that it caused. Service personnel records show that he was in Camp Lejeune from May 1972 to August 1972. Medical records show that he has been diagnosed with degenerative joint disease in both knees (see, e.g., April 2017 VA examination), right shoulder osteoarthritis with trapezius muscle strain (see, e.g., January 2013 VA examination), cervical spondylosis (see, e.g., March 2013 VA treatment record ), and sleep apnea (see, e.g., January 2011 private medical record). These disabilities are not the ones included among the presumptive diseases for Veterans’ service no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. However, the absence of a disease from the presumptive list does not preclude the Veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Although the Veteran during the appeal period was afforded a VA examination for the knees in April 2017, the examiner did not address whether the degenerative joint disease in both knees is the result of the water contatminants at Camp Lejeune. Further, the Veteran was afforded a VA examination for his right shoulder in January 2013 and an accompanying opinion was rendered in February 2013. His attorney contended that the examination was inadequate as the examiner did not address service treatment records documenting treatment for the right arm. Notably, the January 2013 VA examiner also did not address whether the Veteran right shoulder osteoarthritis resulted from his exposure to contaminated water at Camp Lejeune. As for the issue of entitlement to a compensable rating for allergic rhinitis, the Veteran was last examined in January 2013. During his April 2017 Board hearing he stated that his allergic rhinitis increased in severity as he has problems breathing throughout the course of a day. Thus, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of allergic rhinitis. The Veteran also testified during his April 2017 Board hearing that his service-connected depressive and anxiety disorder increased in severity since he was last examined in 2013. Subsequent to his Board hearing, the Veteran was afforded a VA psychiatric examination. The Agency of Original Jurisdiction (AOJ) did not issue a Supplemental Statement of the Case nor has the Veteran waived initial AOJ review of the April 2017 VA examination. To the contrary, during the April 2017 Board hearing the Veteran’s attorney declined the offer proposed by the undersigned for the Veteran to have his medical provider fill out a Disability Benefits Questionnaire. He stated that the Veteran would prefer that the issue be remanded for an examination. Thus, the AOJ should be provided with the opportunity to readjudicate the Veteran’s claim in light of the April 2017 VA psychiatric examination. Further, during the April 2017 Board hearing the Veteran stated that he routinely was receiving VA therapy and counseling. The most recent VA treatment records in the file are dated on April 20, 2017. On remand VA treatment records from April 20, 2017 to the present should be associated with the file. As for the issue of entitlement to TDIU, it is intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from April 20, 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of disabilities of his right knee, left knee, right shoulder, and cervical spine. The examiner is asked to do the following: a.) In addition to the right knee and left knee degenerative joint disease, right shoulder osteoarthritis with trapezius muscle strain, and cervical spondylosis, identify/diagnose any other disabilities of the right knee, left knee, right shoulder, and cervical spine. b.) For the right knee and left knee degenerative joint disease, right shoulder osteoarthritis with trapezius muscle strain, and cervical spondylosis, and any other identified disability of the right knee, left knee, right shoulder, and cervical spine, state whether it is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease to include the Veteran’s exposure to contaminated water at Camp Lejeune. c.) Opine whether the right shoulder osteoarthritis with trapezius muscle strain is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by the Veteran’s cervical spine disability. See February 2013 VA opinion whereby the examiner stated that the Veteran started to have right arm pain following his cervical fusion surgery (in January 2012). In rendering the opinions, the examiner is asked to address the Veteran’s contentions that the conditions resulted from the neurobehavioral effects of the contaminated water at Camp Lejeune. The examiner also must comment on service treatment records in July 1973 that show x-ray of the right arm revealed soft tissue swelling over the distal ulnar shaft, which was tender. The examiner also should comment on service treatment records in April 1975 that show a trick knee and pain around the left knee with an assessment of cartilage degeneration. The examiner also is asked to address the Veteran’s April 2017 testimony whereby he indicated that he has had right shoulder pain since service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sleep apnea. The examiner is asked to do the following: a.) Opine as to whether the Veteran’s sleep apnea is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease to include the Veteran’s exposure to contaminated water at Camp Lejeune. b.) Opine whether sleep apnea is at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by the service-connected depressive and anxiety disorder. See April 2017 Board hearing testimony whereby the Veteran contented that his sleep apnea was secondary to his service-connected psychiatric disorder. The examiner is asked to comment on the Veteran’s contention that the condition resulted from the neurobehavioral effects of the contaminated water at Camp Lejeune. The examiner also is asked to address the Veteran April 2017 testimony whereby he indicated that symptoms of sleep apnea began upon separation from service in 1976. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his allergic rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to allergic rhinitis alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living.   5. Afterwards, the issues remanded herein should be readjudicated by the AOJ, on the basis of additional evidence, to include the April 2017 VA psychiatric examination. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel