Citation Nr: 20002177 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 17-03 291 DATE: January 9, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include a sleep disorder is remanded. Entitlement to service connection for lumbosacral strain (claimed as low back and thoracic condition) is remanded. Entitlement to service connection for seasonal allergic conjunctivitis (claimed as a vision disability) is remanded. REASONS FOR REMAND The Veteran served in the U.S Navy from June 2001 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2016 rating decision for service connection for a low back disability, allergic conjunctivitis and acquired psychiatric disorder. The Veteran testified before the undersigned Veterans Law Judge in September 2019, and a copy of the transcript is of record. The Board notes that new evidence has been associated with the Veteran's claims file since the November 2016 statement of the case (SOC). Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. 38 C.F.R. § 20.1304 (c); Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, if a veteran filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted by the appellant or representative to the AOJ or the Board. 38 U.S.C. § 7105 (e). Entitlement to service connection for an acquired psychiatric disorder to include a sleep disorder is remanded. The Board notes that the Veteran has not been afforded a VA examination with respect to his current claim for service connection for an acquired psychiatric disorder to include sleep disorder. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran's August 2007 VA medical treatment record indicates that he requested "something to help me sleep". In the report, the Veteran associated his problem originating while he was in the Navy serving as an aviation technician. The VA medical report further noted that the Veteran was seen in Urgent Care in 2006 with the same complaints. See August 2007 Medical Treatment Record- Government Facility. In May 2006, the Veteran was referred on consult from Urgent Care Walk In clinic to sleep medicine Pulm clinic for possible sleep education/behavioral intervention due to his report of poor sleep. See May 2006 Medical Report- Government facility. No VA examination has been done to specifically address the current nature and etiology of the Veterans acquired psychiatric disability to include sleep disorders. Consequently, a remand for the relevant examination(s) and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). Entitlement to service connection for lumbosacral strain (claimed as low back and thoracic condition) is remanded. The Veteran was afforded a VA examination to evaluate his lower back condition in July 2016. The examiner diagnosed lumbosacral strain. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that during service, the Veteran’s condition was acute only. The examiner further noted that he was unable to confirm chronicity of back pain issues based on available documentation of his clinic visits. See July 2016 C&P Examination. The Board finds this inadequate as it is based on inaccurate factual premises. Here, the Veteran’s service treatment records (STRs) show that the Veteran had three separate clinical visits for his low back condition. In addition, on his separation examination report, the Veteran indicated that he still suffered low back pain for which he had not sought medical treatment. See STRs. Thus, the examiner has not provided sufficient detail as to why the Veteran's current lumbar disability was not causally related to his recurrent complaints of back problem in-service. The Board notes that an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). As such, on remand, the Board finds that the Veteran should be afforded a new VA lumbar spine disability Examination. Entitlement to service connection for seasonal allergic conjunctivitis (claimed as a vision disability) is remanded. The Veteran contends that his condition had its onset in service in 2005 while he was stationed in San Diego, and that his vision has continued to decline ever since. The Veteran was afforded a VA Examination for his conjunctivitis in November 2016. The examiner stated that the Veteran does not currently have seasonal allergic conjunctivitis but have had it in the past. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that while the Veteran suffered from allergies which included allergic conjunctivitis in San Diego, he has not had any problems with conjunctivitis since leaving the military. His vision loss and visual field loss are not related to the allergic conjunctivitis that he had while in the military. The examiner concluded that there were no objective exam findings that would explain the Veteran's decreased vision or constricted visual field. He noted that no diagnosis was able to be made during the exam and that it is possible that the Veteran may have retinitis pigmentosa based on his symptoms and the progression of it, but he showed no objective signs. See November 2016 C&P Exam. The Board finds this exam inadequate because, the examiner did not consider the Veteran’s lay statement and other medical evidence, indicating that the Veteran’s symptoms continued after moving from San Diego. For instance, in February 2008, the Veteran complained of allergies with dry eyes and stuffy nose and stated that over-the-counter Claritin doesn't work. See February 2008 Medical treatment records-Government facility. In August 2017, the Veteran was diagnosed with myopia of both eyes with astigmatism and presbyopia by the Associated Eye Care. See August 2017 Medical Treatment Record-Non-Governmental facility. A remand is thus warranted for a VA examination to clarify the diagnosis and provide a nexus opinion. The matters are REMANDED for the following action: 1. Secure any outstanding VA treatment and private records from April 2005 to the present. Document all requests for information as well as responses in the claims file. 2. After completing the foregoing development, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any currently diagnosed mental disorder to include sleep disorder. The claims file should be made available to the examiner for review in connection with the examination. For any diagnosed mental disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or higher probability) that the disorder is related to an injury, disease, or event during the period of active service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lumbosacral spine disability. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner must provide an opinion as to whether it is at least likely as not (50 percent probability or greater) that the Veteran’s current back disability is related to an in-service injury, event, or disease. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current allergy disability, to include allergic conjunctivitis. The claims file should be made available to the examiner for review in connection with the examination. For any current allergy disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability is related to the Veteran's active service. The examiners are advised that the Veteran is competent to report symptoms, treatment, and injuries, to include lay statements regarding the onset and persistence of his disability, and that his reports must be taken into account in formulating the requested opinions. The examiners must provide the rationale for all proffered opinions. 5. After the foregoing development have been completed, adjudicate the claims for service connection for an acquired psychiatric disorder, to include sleep disorder, lumbosacral spine disability and conjunctivitis. If the benefits sought are denied, furnish the Veteran a supplemental statement of the case (SSOC) and allow time for the Veteran/representative to respond. 6. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, Associate Counsel 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.