Citation Nr: 21073183 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-15 877 DATE: December 7, 2021 ORDER Entitlement to an effective date prior to May 16, 2011 for service connection for major depressive disorder is denied. Entitlement to an effective date prior to August 8, 2012 for service connection for sleep apnea is denied. Entitlement to service connection for a left eye disorder, to include conjunctivitis, to include as a result of exposure to contaminated water at Camp Lejeune, is granted. Entitlement to service connection for neurobehavioral disorder, to include memory loss to include as a result of exposure to contaminated water at Camp Lejeune, is denied. New and material evidence has not been received to reopen the Veteran's claim for entitlement to service connection for diabetes. New and material evidence has not been received to reopen the Veteran's claim for entitlement to service connection for a right knee disability. Entitlement to a rating in excess of 70 percent for major depressive disorder is denied. REMANDED Entitlement to service connection for right-hand finger disorder, claimed as numb fingers, to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to service connection for high blood pressure (hypertension), to include as a result of exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to a rating in excess of 50 percent for sleep apnea is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that the Veteran is entitled to an effective date prior to May 16, 2011 for service connection for major depressive disorder. 2. The preponderance of the evidence weighs against finding that the Veteran is entitled to an effective date prior to August 8, 2012 for service connection for sleep apnea. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's left eye disability, to include conjunctivitis, began during active service or is otherwise related to an in-service injury. 4. The preponderance of the evidence weighs against finding that the Veteran's neurobehavioral disorder to include memory loss began during active service or is otherwise related to an in-service injury. 5. A May 2006 rating decision denied the Veteran's claim for entitlement to service connection for diabetes. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 6. The evidence received since the May 2006 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim or raise the reasonable possibility of substantiating the claim for entitlement to service connection for diabetes. 7. A December 2009 rating decision denied the Veteran's claim for entitlement to service connection for right knee disability. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 8. The evidence received since the December 2009 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim or raise the reasonable possibility of substantiating the claim for entitlement to service connection for right knee disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to May 16, 2011 for service connection for major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. 2. The criteria for entitlement to an effective date prior to August 8, 2012 for service connection for sleep apnea to include as secondary to major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. 3. The criteria for entitlement to service connection for a left eye disorder, to include conjunctivitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for neurobehavioral disorder to include memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The May 2006 rating decision denying the Veteran's claim for entitlement to service connection for diabetes is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. 6. The additional evidence received since the May 2006 rating decision is not considered new and material; the claim for entitlement to service connection for diabetes is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 7. The December 2009 rating decision denying the Veteran's claim for entitlement to service connection for right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. 8. The additional evidence received since the December 2009 rating decision is not considered new and material; the claim for entitlement to service connection for right knee disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to December 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision remanded the Veteran's claims for entitlement to service connection for bilateral eye disorder, entitlement to service connection for hypertension, entitlement to service connection for right hand finger disorder claimed as numb fingers, whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right knee disorder, whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes, and entitlement to service connection for a neurobehavioral disorder. Upon review, the Board finds that all remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). After the Board's November 2018 remand, a September 2020 rating decision granted entitlement to service connection for right eye condition. As this represents a full grant of the claim for entitlement to service connection for right eye condition, this issue is no longer on appeal before the Board. The left eye claim remains on appeal. New evidence has been added to the record since the September 2020 supplemental statement of the case (SSOC). In May 2021 correspondence, the Veteran waived consideration of this additional evidence by the Agency of Original Jurisdiction (AOJ). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). EFFECTIVE DATE Legal Criteria The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). Analysis Major Depressive Disorder The Veteran contends that he is entitled to an effective date prior to May 16, 2011 for his service-connected major depressive disorder. The Veteran initially filed an informal claim for entitlement to service connection for depression December 29, 1998. The claim was denied in a June 21, 1999 rating decision. The June 1999 rating decision is final because the Veteran did not appeal the decision within one year and no additional evidence was received within one year of the rating decision. The Veteran filed a request to reopen his claim April 30, 2001. A March 25, 2002 rating decision denied the claim. The Veteran did not appeal this denial. The Board acknowledges that evidence received in April 2012 includes VA treatment records from February 2001 through March 2003 which note the Veteran's treatment for depression. This evidence was not previously of record. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that VA treatment records created within one year of a rating decision (in this case, the March 2002 rating decision) are in constructive possession of VA, regardless of whether a VA adjudicator has actual knowledge of these records. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). The Federal Circuit has also held that a claim such as this remains open until VA determines whether evidence received within the one-year appeal period is "new and material." Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Here, the March 2002 rating decision did not make a determination as to whether all records within the one-year period were new and material, as it is clear records dated February 2001 through March 2003, which were in constructive possession based on Lang, were not considered. Thus, the question for the Board is whether this additional evidence is new and material. While this evidence is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The VA treatment records in question note that the Veteran has been prescribed medication for treatment of his depression and has a history of mental health treatment including psychotherapy. The records also note symptoms of social isolation, violent behavior, and sleep disturbance. However, the record already contained evidence of the Veteran's symptoms and treatment for depression. Specifically, a March 1999 VA examination report shows that the Veteran was being prescribed psychiatric medications. The report further notes a diagnosis of major depressive disorder with psychotic features as well as the Veteran's symptoms of social isolation, interpersonal conflict, violent behavior, insomnia, significant weight gain, loss of energy and suicidal and homicidal ideation. As such, the February 2001 through March 2003 treatment records noting the Veteran's treatment and symptoms related to depression are not material evidence, as the Veteran's depression had already been established by evidence present in the record at the time prior final rating decisions. The Board, therefore, finds that new and material evidence was not received within on year of the prior final decision. Because the Veteran did not appeal the March 2002 rating decision, and no new and material evidence was received within one year of the rating decision, the March 2002 rating decision is final. In making this finding, the Board notes that the holding in Beraud made no finding that the question of new and material evidence be resolved at the time of the subsequent rating decision or that it be specifically resolved by the AOJ. Rather, the Court found that "[b]ecause the VA never determined" whether additional evidence was new and material that a prior claim remained pending. Id. at 1407 (emphasis added). Had the Federal Circuit in Beraud wished to limit this determination to the AOJ or, even more specifically, to the subsequent rating decision on appeal, the Board finds the Court would have explicitly stated so. Moreover, in Lang, the Federal Circuit specifically found that the Court of Appeals for Veterans Claims erred when it declined to remand the appellant's claim to the Board for review of and determination as to whether post-decision VA medical records were new and material, further evidencing that this procedural defect may be cured after the subsequent rating decision in question. Id. at 1355 (emphasis added). Considering the foregoing, the Board finds that a determination regarding new and material evidence to cure a Beraud defect is not limited to the subsequent rating decision in question (or even to the AOJ, as Beraud suggests and as Lang makes clear), and that it may be cured during the appeal period, thus rendering a prior decision final. Here, because the February 2001 to March 2003 medical evidence is not material, the Veteran did not appeal the March 2002 rating decision, and no new and material evidence was received within one year of the rating decision, the March 2002 rating decision is final. On December 19, 2005, the Veteran subsequently filed a request to reopen his claim, seeking service connection for bipolar depression. A May 17, 2006 rating decision continued to deny the Veteran's claim, based on no new and material evidence. The May 2006 rating decision lists the evidence considered as: the VA form 21-4138 statement in support of claim received December 19, 2005; correspondence sent to the Veteran dated February 22, 2006; and service medical records. The rating decision does not indicate that any post service VA treatment records were considered. However, a review of the evidence of record shows that VA treatment records added to the file in approximately April 2012 include VA treatment records from June 2005 through May 2007, which show ongoing treatment for the Veteran's bipolar depression. Because this evidence was created within one year of the May 2006 decision, these records were within constructive possession of VA. Lang 971 F.3d 1348. However, while these records are new, they are not material because they continue to note ongoing treatment for an acquired psychiatric disorder. Evidence of record at the time of the April 1999 and March 2002 rating decisions establish that the Veteran has an acquired psychiatric disorder with a history of mental health treatment. Therefore, this evidence, while new, is not material as it does not establish an unestablished fact necessary to substantiate the Veteran's claim. As this evidence is not material, the Veteran did not appeal the rating decision, and no new and material evidence was received within one year of the rating decision, the May 2006 rating decision is final. The Veteran filed a subsequent informal claim on May 16, 2011. Prior to the claim being adjudicated the Veteran filed another informal claim August 8, 2012. An October 2013 rating decision denied the Veteran's claims. The Veteran appealed this denial and a November 2018 Board decision granted entitlement to service connection for depression. Subsequently, a January 2019 rating decision established an effective date of August 8, 2012 for the Veteran's service-connected depression. The Veteran filed a notice of disagreement in April 2019 seeking an earlier effective date for his depressive disorder. A March 2020 rating decision granted an earlier effective date of May 16, 2011, the date of the Veteran's informal claim. There is no evidence within the record between May 3, 2006, the most recent final prior denial, and May 16, 2011, to suggest the Veteran was attempting to file a claim. The Veteran is entitled to an effective date of the date the disability arose or the date of a reopened application after a prior final denial, whichever is later. Here, the Veteran has been granted an effective date of May 16, 2011, the date of his reopened claim. As all of the prior rating decisions are final, the Veteran is not entitled to an effective date prior to May 16, 2011. Entitlement to an effective date prior to May 16, 2011 is denied. Sleep Apnea The Veteran contends that he is entitled to an effective date prior to August 8, 2012 for the award of service connection for sleep apnea. The Veteran's initial claim for entitlement to service connection for sleep apnea was received August 8, 2012. The record contains no evidence of a claim for sleep apnea filed prior to August 8, 2012 or a notice of intent to file submitted or received prior to August 8, 2012. Thus, even assuming arguendo that the record establishes an onset of sleep apnea prior to August 8, 2012 the Veteran is entitled to an effective date of the date the disability arose or the date of a reopened application after a prior final denial, whichever is later (emphasis added). 38 U.S.C. § 5110(a). In this case, August 8, 2012 is the later date. As such, entitlement to an earlier effective date is not established. SERVICE CONNECTION Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who had no less than 30 days of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987, is presumed to have been exposed during such service to the following contaminants in the water supply at Camp Lejeune: trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride. 38 C.F.R. § 3.307. Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines "contaminants in the water supply" as the volatile organic compound trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953 and ending on December 31, 1987. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309 (f), and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-4185 (January 13, 2017). In issuing this regulation, VA specifically concluded that there is insufficient medical and scientific evidence to establish a presumption of service connection for any disability beyond the eight diseases listed in the regulation. 82 Fed. Reg. 4180. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis At the outset, the Board notes that the Veteran's claimed disabilities are not included in the list of presumptive diseases under 38 C.F.R. § 3.309. Consequently, the Board finds that the Veteran cannot prevail on his claims for service connection based upon this presumptive theory of entitlement. Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune, North Carolina, may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Left Eye Disorder The Veteran contends that he is entitled to service connection for a left eye disorder. The Veteran's August 1978 enlistment examination notes no abnormalities other than a right knee scar. However, consistent with the VA examiner's opinion, service treatment records note a PEARL sclera and darkened spots in January 1979. In a May 2020 VA opinion, the examiner asserts that the Veteran has chronic follicular conjunctivitis which is a continuation of the Veteran's conjunctivitis noted in service. The examiner concludes that the Veteran's chronic follicular conjunctivitis is at least as likely as not proximately due to or the result of the Veteran's military service. The Board affords probative weight to the May 2020 VA examination as it is based on a full review of the evidence of record; further the clinician is an ophthalmologist the proper medical knowledge to render this opinion. Resolving reasonable doubt in favor of the Veteran, service connection for left eye conjunctivitis is warranted. Neurobehavioral Disorder to Include Memory Loss In his August 2012 statement in support of claim the Veteran contends that he suffers from neurobehavioral disorder to include memory loss as a result of his exposure to toxic contaminated water at Camp Lejeune. Upon review, the evidence of record does not establish symptoms of or a current diagnosis of neurobehavioral disorder. Treatment records as recently as May 2019 note the Veteran's neurological functioning as grossly intact. Subsequent treatment records do not note any complaints or diagnosis of neurological disabilities. While treatment records note some complaints of memory loss, an April 2016 VA examination notes that the Veteran's symptoms of memory loss are associated with his diagnosis of major depressive disorder, for which the Veteran is already service connected. Ultimately, the record does not substantiate a current diagnosis of neurobehavioral disorder, as such service connection is not warranted. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claim for service connection for neurobehavioral disorder but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (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, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that in the instant matter, there is no competent evidence of a current diagnosis of any neurobehavioral disability. For these reasons, a VA medical opinion is not necessary to decide the claim of service connection for neurobehavioral disability. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). Moreover, while the Veteran is credible to report his symptoms, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on these claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to neurological disorders to include memory loss. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on this collective body of evidence, the Board finds that any statements as to continuity of symptoms referable to the Veteran's memory loss since service are not credible based on the record, as a whole, including no mention of this for several decades following service. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In sum, there is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a neurological disorder to include memory loss, causally related to, or aggravated by, his service, and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Because there is no evidence of a current disability, entitlement to service connection for neurobehavioral disability is denied. REOPENING Legal Criteria To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Diabetes The Veteran's claim for diabetes was initially denied in May 2006 based on no evidence of an in-service injury or a nexus between the Veteran's diabetes and his active service. No additional evidence was received within one year of the May 2006 rating decision; therefore, the rating decision is final. The Veteran filed a new claim for service connection for diabetes in August 2012. An October 2013 rating decision declined to reopen the Veteran's claim for diabetes based on no new and material evidence. Following an August 2014 notice of disagreement, the Veteran perfected his appeal with a timely VA Form 9. Since the May 2006 rating decision, new evidence has been added to the record. This evidence includes VA treatment records and a VA examination for diabetes. The treatment records added to the file since the May 2006 rating decision show ongoing treatment for the Veteran's diabetes. While this evidence is new, it is not material because it does not relate to an unestablished fact necessary to substantiate a claim, specifically evidence of an in-service incurrence of diabetes or a nexus between the Veteran's service and his current diabetes. Evidence of record prior to the May 2006 rating decision established that the Veteran has a current disability of diabetes requiring treatment. The May 2020 VA examination for the Veteran's diabetes is also new evidence. In the examination report, the examiner notes that the Agency for Toxic Substances and Disease Registry (ATSDR) website identifies fourteen medical conditions as reported health problems in people of all ages from drinking water contaminated with Trichloroethylene (TCE) and/or Perchloroethylene (PCE) (32). Diabetes and/or diabetic neuropathy are not among them. Further, the ATSDR does not identify diabetes and/or diabetic neuropathy as reported health problems in people of all ages from working with TCE and/or PCE, benzene, or vinyl chloride. The examiner notes that there have been no reports or literature linking organic solvent exposure to diabetes and diabetic neuropathy. Further, the examiner does not opine that there is a nexus or etiological relationship between the Veteran's diabetes and his military service, including his service at Camp Lejeune. Thus, this evidence does not raise the reasonable possibility of substantiating the Veteran's claim; as such, this evidence is not material. Overall, while the record contains new evidence added since the May 2006 rating decision, the evidence does not raise the reasonable possibility of substantiating the Veteran's claim. New and material evidence not having been received, the Veteran's claim for entitlement to service connection for diabetes mellitus is not reopened. Right Knee The Veteran's claim for right knee disability was initially denied in May 1980 because the Veteran's conditions existed prior to service and were not incurred in service or aggravated by service beyond normal progression. No additional evidence was received within one year of the May 1980 rating decision. The May 1980 rating decision is final. The Veteran filed a request to reopen his claim in May 1995 and December 1998. A March 2002 rating decision did not reopen the Veteran's claim for right knee disability based on no new and material evidence. The Veteran did not appeal, and no additional evidence was received within one year of the March 2002 rating decision; therefore, the decision is final. The Veteran filed a request to reopen his claim again in December 2005. A May 2006 rating decision declined to reopen the claim based on no new and material evidence. Because no additional evidence was received within one year of the rating decision, the May 2006 rating decision is final. The Veteran filed another claim for entitlement to service connection for a right knee disability in June 2009. A December 2009 rating decision declined to reopen the Veteran's claim for service connection for right knee disability. No additional evidence was received within one year of the December 2009 rating decision; therefore, the December 2009 rating decision is final. The Veteran filed the current claim for entitlement to service connection for right knee disability in August 2012. An October 2013 rating decision again denied reopening of the Veteran's claim for right knee disability noting no new and material evidence. The Veteran filed a notice of disagreement in August 2014 and subsequently perfected his appeal with an April 2016 VA Form 9. New evidence has been received since the December 2009 rating decision. This evidence includes treatment records documenting ongoing complaints of right knee pain. However, this evidence does not raise the reasonable possibility of substantiating the Veteran's claim, because it does not suggest that the Veteran's right knee disability was aggravated beyond its normal progression in service or is otherwise related to military service. As such, this evidence does not warrant reopening the Veteran's claim for entitlement to service connection for right knee disability. New and material evidence having not been received, reopening of the Veteran's claim for service connection for right knee disability is denied. INCREASED RATING General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Major Depressive Disorder The Veteran is currently service connected for major depressive disorder with a rating of 70 percent beginning May 16, 2011. Major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, under the General Rating Formula for Mental Disorder. The criteria for a 70 percent rating are occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that section "4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Analysis The Veteran's major depressive disorder was initially service connected in a November 2018 Board decision. A December 2018 rating decision granted a 70 percent rating effective August 8, 2012. The Veteran filed a notice of disagreement in April 2019 and a March 2020 rating decision granted an earlier effective date, but continued the 70 percent rating. The Veteran contends that he is entitled to an initial rating in excess of 70 percent for his major depressive disorder. The next, and highest rating for major depressive disorder is 100 percent. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Although no particular symptom is required, the probative evidence weighs against establishing entitlement to a total disability rating for major depressive disorder. Throughout the period at issue, the Veteran's social worker frequently reported the Veteran as being alert and oriented. Further, while the Veteran's mental health treatment has been sporadic, evidence of record including treatment notes from mental health appointments, psychosocial evaluations and psychiatric evaluations frequently note the Veteran as being alert, oriented, cooperative, having normal speech and normal language. The Veteran was frequently noted to have depressed mood and affect and reported some suicidal ideations, but no suicide attempts or plan. The Veteran also reported some symptoms of irritability, hyperactivity, impulsivity, and mood swings. He has also occasionally endorsed symptoms of delusions, hallucinations, and memory loss. Nonetheless, treatment records note that the Veteran has fair judgment and insight with intact impulse control, intact memory, and appropriate thought content. Additionally, despite the Veteran's frequent reports of depression and self-isolation, in February 2012, the Veteran reported connecting to the jazz musical community and in May 2013 the Veteran reported being in a band. The Veteran has frequently denied having close friends and familial relationships. However, in May 2019 the Veteran reported that he returned to therapy after being encouraged to do so by a friend. In August 2019 the Veteran reported that he attended his son's wedding in July 2019, which was the first time seeing his children in years. Additionally, as noted in January 2019 and May 2019 VA treatment records, the Veteran reported having a dog. Further, throughout the period at issue the Veteran frequently reported being able to perform his activities of daily living (ADLs) independently. The Veteran has also been able to appropriately interact with his social worker and medical professionals throughout the period on appeal. Overall, while treatment records show that the severity, frequency, and duration of the Veteran's mental health symptoms have waxed and waned, the Veteran's mental health disability does not result in total occupational and social impairment. In addition to VA treatment records, the Veteran has been afforded VA examination for his mental health disability in October 2015 and August 2019. The October 2015 VA examination noted a diagnosis of major depressive disorder which resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, persistent delusions or hallucinations, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living. August 2019 VA examination noted a diagnosis of major depressive disorder resulting in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. The Veteran reported that he has difficulty with romantic relationships because of his deep bouts of depression. He further reported that while he attended his son's wedding in July 2019, that was the first time he had seen his children in years. The Board affords probative weight to the VA examinations of record as they are consistent with and supported by the evidence of record which shows ongoing depressive symptoms, the severity of which do not result in total occupational and social impairment. Without evidence of more serious social impairment, a higher rating is not warranted. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 100 percent evaluation or akin to the symptoms as found in the rating criteria. Mauerhan, 16 Vet. App. 436. In finding that a higher rating is not warranted, the Board has considered the Veteran's statements regarding the severity of his psychiatric symptoms. Certainly, as a lay person, the Veteran is competent to attest to the symptoms that he experiences, and lay witnesses are competent to describe what they have observed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, he has been credible in these statements supporting a 70 percent rating. However, as it pertains to the specific criteria for a 100 percent schedular rating under Diagnostic Code 9411, the totality of the lay and medical evidence, when considering the type, severity, and frequency of symptoms, weighs against a finding of "total" occupational and social impairment, or a level of disability more nearly approximating "total" occupational and social impairment. Regardless, with respect the overall severity of the Veteran's major depressive disorder, the Board finds the medical impressions and treatment records to be far more probative of the degree of impairment than the lay statements as it pertains to the extent of the overall psychological, occupational, and social impairment due to major depressive disorder. The Board further acknowledges that the Veteran has been awarded TDIU, as a result of the Veteran's inability to obtain and maintain substantially gainful employment due to his service-connected disabilities. Nonetheless, to warrant a 100 percent rating for major depressive disorder the Veteran must demonstrate both total occupational and total social impairment as a result of his major depressive disorder. Here, while the Veteran's major depressive disorder may contribute to occupational impairment, for the reasons discussed above the Veteran's major depressive disorder does not demonstrate total social impairment. Accordingly, the Board finds that a rating in excess of 70 percent for major depressive disorder for the period on appeal is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to a rating in excess of 70 percent for major depressive disorder is denied. REASONS FOR REMAND Service Connection Finger, Right Hand Following the Board's November 2018 remand, the Veteran was afforded a VA examination for his right-hand disability in August 2020. The examiner opined that the Veteran did not have a current right-hand disability, based on no pain or loss of range of motion during the VA examination. However, December 2010 treatment records note that the Veteran likely has right carpal tunnel. Further, more recent January 2019 and April 2019 VA treatment records note that the Veteran has neuropathy in his hands. The examiner did not consider or address this evidence. Moreover, even if the Veteran does not have a diagnosed right-hand disability, pain may constitute a disability if it results in functional loss. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The record does not contain an opinion as to whether the Veteran's right-hand pain causes functional loss and therefore constitutes a disability. Remand is warranted for a new VA examination. Service Connection High Blood Pressure (Hypertension) Remand is warranted for an addendum opinion regarding the Veteran's hypertension, to include whether obesity is an intermediate step between the Veteran's service-connected disabilities and his hypertension. In a May 2020 VA opinion for hypertension, the examiner noted that obesity and physical inactivity are major risk factors for hypertension. Treatment records as recent as June 2020 note the Veteran as an obese male. Further, the Veteran is service connected for major depressive disorder and sleep apnea. The VA General Counsel states in an opinion that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court of Appeals for Veterans Claims held VAOPGCPREC 1-2017 not only applies when a service-connected disability causes obesity, but also when a service-connected disability aggravates obesity. When raised by the record, the Board must consider whether obesity was caused or aggravated by a service-connected disability, consistent with 38 C.F.R. § 3.310(b). Here, based on the Veteran's service-connected disabilities of major depressive disorder and sleep apnea and the examiner's opinion that the Veteran's hypertension may be related to obesity, the issue of obesity as an intermediate step is raised by the record, and remand is warranted for an addendum opinion. Increased Rating - Sleep Apnea Remand of the Veteran's sleep apnea claim is warranted for a new VA examination. The Veteran contends that he is entitled to a rating in excess of 50 percent for sleep apnea. The next and highest rating for sleep apnea is 100 percent, which requires evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. The Veteran was afforded a VA examination for his sleep apnea in August 2020. However, the examiner did not address whether the Veteran's sleep apnea demonstrated chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires a tracheostomy. As this information is required to evaluate the Veteran's entitlement to a 100 percent rating, remand is warranted for a new VA examination. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding VA treatment records have been obtained, schedule the Veteran for a new VA examination with an appropriate clinician for his right-hand disability. The examiner is asked to address the following: (a) Identify all right-hand disabilities present in the record. The examiner is asked to consider all evidence of record including December 2010 VA treatment records which note a possible diagnosis of carpal tunnel, and January 2019 and April 2019 VA treatment records which note right hand neuropathy. (b) If a right-hand disability cannot be identified indicate whether the Veteran's right-hand pain results in functional loss. In rendering this opinion, the examiner is asked to consider all evidence of record including April 2019 VA treatment records which note that the Veteran complained of inability to use his hands and May 2019 VA treatment records which note that the Veteran was unable to make a fist due to his right-hand pain. (c) Is it as least as likely as not that the Veteran's right-hand disability (or right-hand pain if it results in functional loss) was incurred in or caused by military service, to include service at Camp Lejeune? All opinions must be supported by adequate rationale. 3. After all outstanding VA treatment records have been obtained, schedule an examination to determine the nature and likely etiology of the Veteran's hypertension, with particular consideration of the etiology of his obesity. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on claims file review and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities caused the Veteran to become obese, to include as due to any lack of exercise resulting from service-connected depression and/or sleep apnea. (b) If the answer to (a) is "no," opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities aggravated the Veteran's obesity, to include as due to any lack of exercise resulting from service-connected depression and/or sleep apnea. (c) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (b)) was a substantial factor in causing the Veteran's hypertension. (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have hypertension if he were not obese (or but for obesity aggravated by service-connected depression and/or sleep apnea) per question (b)). Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. After all outstanding VA treatment records have been obtained, schedule the Veteran for a new VA examination with an appropriate clinician for his sleep apnea. The examiner is asked to opine: (a) Does the Veteran's sleep apnea result in chronic respiratory failure with carbon dioxide retention or cor pulmonale? (b) Does the Veteran's sleep apnea require tracheostomy? 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.