Citation Nr: 21011361 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-31 292 DATE: March 1, 2021 ORDER Severance being proper, restoration of service connection for a right eye macular scar is denied. Severance being improper, restoration of service connection for a left eye posterior subcapsular cataract is granted. Entitlement to a rating of 70 percent from October 19, 2011 to June 13, 2019 for post-traumatic stress disorder (PTSD) with anxiety disorder is granted. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for musculoskeletal-neck/upper back (cervical spine) also claimed as arthritis is remanded. FINDINGS OF FACT 1. For the period from October 19, 2011 to June 13, 2019, the Veteran’s service-connected PTSD with anxiety disorder was manifested with symptoms that resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Entitlement to service connection for a right eye macular scar and left eye posterior subcapsular cataract was granted in a May 2015 rating decision. 3. In an October 2017 rating decision, VA found that the May 2015 rating decision had improperly granted service connection, and severance entitlement to service connection was proposed for a right eye macular scar and left eye posterior subcapsular cataract. 4. A November 2018 rating decision severed service connection effective February 2019 for a right eye macular scar and left eye posterior subcapsular cataract. 5. The October 2017 rating decision properly identified a clear and unmistakable error in the May 2015 rating decision granting service connection for a right eye macular scar. 6. The October 2017 rating decision failed to properly identify any clear and unmistakable error in the May 2015 rating decision granting service connection for a left eye posterior subcapsular cataract. The failure to properly apply the appropriate regulations for severance, is clear and unmistakable error, and severance was improper. 7. The Veteran does not have a diagnosis of hypertension, nor does the record support a finding that his blood pressure has been continuously elevated since discharge from military service. CONCLUSIONS OF LAW 1. The criteria for restoration of service connection for a right eye macular scar have not been met. 38 U.S.C. § 5112 (2018); 38 C.F.R. § 3.105 (2020). 2. The criteria for restoration of service connection for a left eye posterior subcapsular cataract have been met. 38 U.S.C. § 5112 (2018); 38 C.F.R. § 3.105 (2020). 3. The criteria for entitlement to a rating of 70 percent for service-connected PTSD with anxiety disorder from October 19, 2011 to June 13, 2019 have been met. 38 U.S.C. § 1155, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400(o)(2), 4.7, 4.10, 4.21, 4.7, 4.14, 4.27, 4.130, Code 9411 (2020). 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154(a), 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 2000 to November 2004. The Veteran’s service records reflect that he was a qualified paratrooper and was awarded the Combat Infantry Badge, with deployment in Iraq from May 2003 to July 2004. See Military Personnel Record, October 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the April 2012, January 2017, and October 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The April 2012 rating decision recharacterized the service-connected anxiety disorder as PTSD with anxiety disorder with an evaluation of 30 percent effective January 2, 2012. The January 2017 rating decision denied service connection for hypertension, TBI, and a cervical spine condition. The October 2017 rating decision proposed the severance of service connection for right eye macular scar and left eye posterior subcapsular cataract. In April 2018, the issues of entitlement to an increased evaluation for PTSD with anxiety disorder evaluated as 30 percent disabling and entitlement to an effective date earlier than December 1, 2011 for an evaluation greater than 10 percent for PTSD with anxiety disorder were before the Board. The Board found that the evidence of record supported an evaluation of 50 percent, and no greater, for the Veteran’s PTSD with anxiety disorder; and an effective date of October 19, 2011, and no earlier, was warranted because VA treatment records reflect that the increase was factually ascertainable and was within the one year period prior to the receipt of the Veteran’s claim for an increased rating on December 1, 2011. In July 2019, the April 2018 Board decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC). In a February 2020 CAVC decision, the Court found that the Board provided an inadequate statement of reasons and bases for its denial of entitlement to a PTSD rating in excess of 50 percent since October 19, 2011 and erred in relying on inadequate VA medical opinions. See CAVC Decision, February 2020. The Court noted that the Veteran did not challenge those parts of the Board decision that denied service connection for a psychiatric disorder other than PTSD or granted an effective date of October 19, 2011, but no earlier, for a 50 percent PTSD rating. The April 2018 Board decision was vacated, in part, and remanded for readjudication consistent with the opinion. The matter is again before the Board. Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation 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 evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 50 percent from October 19, 2011 to June 13, 2019 for post-traumatic stress disorder (PTSD) with anxiety disorder The Veteran asserts that a rating of 70 percent from October 19, 2011 to June 13, 2019 for his service-connected PTSD with anxiety disorder is warranted. See Third Party Correspondence, August 2020. In the February 2020 CAVC decision, the Court found that in the April 2018 Board decision, the Board (1) erred when it relied on the absence of symptoms found in the 100 percent rating criteria to deny a 70 percent rating; (2) erred when it did not address the impact of the Veteran’s symptoms on his social and occupational relationships; and (3) erred when it did not address evidence indicating that the Veteran has “obsessional rituals which interfere with routine activities." See CAVC Decision at p.83 of 84. A January 2020 rating decision granted a 100 percent disability rating effective June 13, 2019. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 100 percent rating contemplates 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. A 70 percent rating, may be assigned for 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 inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A review of the medical evidence of record revealed an October 2011 VA emergency department report which reflects that the Veteran was seen for headaches precipitated by pressing on the occipital area. See Medical Treatment Record-Government Facility, January 2012. at p.12 of 14. The Veteran reported having symptoms of anxiety and depression. The examiner noted mild muscle spasm in the cervical area. The Veteran was diagnosed with tension headaches and anxiety disorder. An October 2011 VA mental health diagnostic note reflects that the Veteran reported having repeated disturbing memories, thoughts or images of a stressful military experience from the past; having repeated disturbing dreams of a stressful military experience from the past; suddenly feeling or acting as if a stressful military experience were happening again; having physical reactions when something reminded him of a stressful military experience; avoiding thinking about or talking about a stressful military experience; avoiding activities or situations because they remind him of a stressful military experience; loss of interest in activities that he used to enjoy; feeling distant or cut off from other people; feeling emotionally numb or being unable to have loving feelings for those close to him; feeling as if his future will somehow be cut short; trouble falling or staying asleep; feeling irritable or having angry outbursts; having difficulty concentrating; being super alert or watchful or on guard; and feeling jumpy or easily startled. Id. at p.2 of 14. The Veteran reported that he has experienced edginess and having a short fuse since 2004; and saw a counselor in first or second grade for hyperactivity. Id. at p.6 of 14. The examiner noted that the Veteran reported an incident of watching two Iraqi civilians shot at close range. The Veteran reported that he cannot stop replaying the incident in his mind and feels shame and guilt for what he witnessed. Id. The examiner indicated that the Veteran had feelings of hopelessness or helplessness. Id. at p.8 of 14. The Veteran was diagnosed with delayed onset PTSD. Id. at p.8 of 14. A January 2012 VA mental health note reflects that the Veteran reported that he continues to check the house and perimeter when is anxiety level is high, which is daily; and that he continues to struggle with nightmares, avoidance, is easily startled, and on guard. See Capri, February 2012 at p.1 of 77. Veteran reported having repeated disturbing memories, thoughts or images of a stressful military experience from the past; suddenly feeling or acting as if a stressful military experience were happening again; having physical reactions when something reminded him of a stressful military experience; avoiding thinking about or talking about a stressful military experience; avoiding activities or situations because they remind him of a stressful military experience; feeling distant or cut off from other people; feeling emotionally numb or being unable to have loving feelings for those close to him; feeling as if his future will somehow be cut short; trouble falling or staying asleep; feeling irritable or having angry outbursts; being super alert or watchful or on guard; and feeling jumpy or easily startled. Id. at p.4 of 77. The Veteran was diagnosed with Iraq combat related PTSD. Id. In January 2012, the Veteran submitted a claim for PTSD. See VA 21-526, January 2012. The Veteran reported witnessing a firefight while deployed and seeing civilians killed; being terrified to fail at protecting his family; having a mental break down in the emergency room; being made aware of his PTSD diagnosis; being prescribed Zoloft; and seeking monthly therapy. In March 2012, the Veteran was afforded a PTSD VA examination. See VA Examination, March 2012. The examiner noted that the Veteran was the recipient of the Combat Infantry Badge. The examiner noted that the Veteran reported the incident involving the Iraqi civilians and became tearful talking about it. The Veteran reported being exposed to RPG and an IED explosion. The Veteran reported that the shooting incident happened at the end of 2003. The examiner noted that the Veteran was taking psychotropic medications and sees a physician assistant in the VA mental health clinic, as well as a social worker. The Veteran reported having problems with sleep; getting aggressive with his wife; hitting his wife while asleep; dreaming about being back in Iraq and about people trying to chase his family members; waking up anxious, nervous and occasionally sweating; avoiding watching anything related to war on TV because it upsets him; getting hypervigilant with sounds of thumps and hisses; having problems with anxiety around crowds; getting irritable and angry towards himself; and feeling depressed at times but no suicidal or homicidal thoughts. The Veteran reported that had been working in insurance since April 2011. The Veteran reported that he used to hunt and fish but does not anymore; and does not socialize much. The examiner diagnosed the Veteran with PTSD and generalized anxiety disorder. The Veteran stated that the Veteran suffers from PTSD symptoms of intrusive thoughts, flashbacks, nightmares; and generalized anxiety disorder symptoms of chronic anxiety and nervousness. The examiner noted that the Veterans generalized anxiety disorder was secondary to his PTSD. The examiner noted that the Veteran’s stressor do relate to his current PTSD diagnosis, although they are mild to moderate. The examiner stated that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was mild or transient with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. A March 2012 VA mental health note reflects that the Veteran reported having vivid dreams along with thrashing in his sleep. See Capri, April 2012. The Veteran reported that he could control the thoughts and flashbacks during the day, but not at night. The examiner noted that the Veteran appeared anxious when describing the sleep disturbances and is very disappointed that he and his wife are now considering sleeping in separate beds so that he does not disturb her sleep throughout the night with talking, kicking, hitting and loud grinding of teeth. In a May 2012 VA treatment plan, the clinician noted that the Veteran continues to have anxiety, hyperalert problems, self-imposed isolation, constant concern that something bad is going to happen, and vivid nightmares with flailing. See Medical Treatment Record-Government Facility, September 2014. In a September 2012 VA treatment plan the clinician noted, “the veteran states he was trying to adjust to college life and at times the military mind set comes out and he wants to respond the way he did in combat but knows he can’t which causes anxiety.” Id. The Veteran admitted to having road rage, which had recently resurfaced. Id. A May 2014 VA neuropsychology consult reflects that the Veteran reported the he was currently in marriage counseling and trying to work on managing his irritability. See Capri, July 2017. The Veteran stated that he curses and “says some pretty vulgar stuff,” but he does not have any history of violence. The Veteran reported that he finds playing first person shooter war games helps him feel calm as he likes teaching other players tactics and “seeing it come together as a team.” In an October 2014 VA treatment plan, the clinician noted that the Veteran reported always feeling as though he was on guard; finds relief in walking and playing war games on the computer; was in counseling with his wife due to marital conflict; and that he worries most of the time, which affects his overall functioning and ability to focus. See Medical Treatment Record-Government Facility, September 2015 at p.17 of 20. In another October 2014 VA treatment plan, the clinician noted that the Veteran reported having difficulty with school. Id. In a November 2014 VA treatment plan, the clinician noted that the Veteran reported having issues within his marriage, due to his wife feeling he is too protective; and having difficulty staying on topic and often displays tangential thinking. Id. at p.15 of 20. The Veteran reported that he has thoughts of joining the “Kurdish military.” The Veteran reported that he is always waiting for something bad to happen. A December 2014 VA mental health medication management note reflects that the Veteran reported that Sertraline helps his mood but is not enough and that he gets “pissed” easily. See Medical Treatment Record-Government Facility, September 2015 at p.3 of 11. The Veteran reported that the medication for nightmares has helped but he still has nightmares 1-2 times a week. Additionally, the Veteran reported working full time and taking college courses. However, the Veteran reported feeling frustrated after being rejected for a job he applied for. Id. at p.4 of 11. The examiner noted that the Veteran’s mood as anxious and dysphoric; and noted tearfulness. A January 2015 VA treatment plan reflects that the Veteran reported having difficulty juggling his responsibilities in his life. Id. at p.12 of 20. The clinician noted that the Veteran exhibited high level of anxiety, evidenced by rapid speech and the inability to maintain his thoughts. The Veteran reported that he feels that there is something is wrong with him because he cannot get a good job. A July 2015 VA mental health note reflects that the Veteran reported that the divorce from his wife was final and that he was struggling to adjust to being single. See Medical Treatment Record-Government Facility, September 2015 at p.6 of 145. The Veteran reported that he spends the bulk of his time alone, that he can be discouraged and anxious being without his wife, and he drinks to intoxication to cope. He reported that he prefers not dealing with people and he gets impatient and easily frustrated. An August 2015 VA mental health medication management note reflects that the Veteran reported being stressed. Id. at p.4 of 145. The Veteran reported that the increase in dose of Sertraline was beneficial initially but has not improved since then. the Veteran also reported that the nightmare medication helped but that he still wakes up frequently after dreams and has difficulty going back to sleep. Additionally, the Veteran reported having trouble staying focused on tasks and admitted he worries about starting college classes again. In November 2015, the Veteran was afforded another VA mental disorders examination. See C&P Exam, November 2015. The examiner indicated the occupational and social impairment due to mild or transient symptoms resulted in decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he continued to think about the civilian deaths in the war, and he gets irritated with people who are overly opinionated. The examiner indicated that the Veteran’s active symptoms were anxiety and disturbances of motivation and mood. In May 2016, the Veteran was afforded a PTSD VA examination. See C&P Exam, May 2016. The examiner indicated that the Veteran had recurrent, involuntary, and intrusive distressing memories when not busy; recurrent distressing dreams; intense or prolonged psychological distress at exposure to trauma cues; marked physiological reactions to cues, such as nausea; avoidance of or efforts to avoid distressing memories, thoughts, or feelings; persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event; persistent negative emotional state; markedly diminished interest or participation in significant activities; reckless or self-destructive behavior; hypervigilance; exaggerated startle response; and problems with concentration. The examiner noted that the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he was currently on leave without pay due to medical issues and that he had been in and out of college for the past four semesters. The Veteran stated that some of his difficulty in the past was due to marital issues, some due to pain, and some to concentration problems. In an August 2016 statement, the Veteran reported that he struggles a lot; has had to withdraw multiple times from college to maintain a 2.0 GPA; has difficulty retaining short term instruction; is constantly on guard when without his family; has night terrors 1-2 times every 3 or 4 weeks; lost his job due to mistrust of employers or being fired for not being able to retain learned communication skills with clients; continues to have nightmares; “rounds” the house multiple times to ensure doors are locked; and makes sure firearms are in the proper place over and over. In June 2019, the Veteran was afforded another PTSD VA examination. The examiner indicated that the Veteran has persistent anxiety which interferes with his ability to function well; restlessness, irritability, muscle tension, poor concentration, and sleep difficulties/fatigue; occasional panic attacks with abrupt surge of intense discomfort that reaches a peak within minutes; accompanying rapid heart rate, sense of dread, nausea, and chills/flushing/sweating; with his most intense symptoms being nausea and stomach distress. See C&P Exam, June 2019. The examiner noted that the symptoms of intrusive memories, dreams with traumatic content, and flashback episodes with the accompanying physiological/psychological arousal; and external and internal avoidance of stimuli associated with traumatic events are attributed to PTSD. The examiner stated, “all other symptoms can reasonably be attributed to either diagnosis. It is believed that the veteran’s Generalized Anxiety Disorder stems from and is exacerbated by his PTSD.” The examiner indicated that the Veteran’s symptoms have 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 include depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; speech intermittently illogical, obscure or irrelevant; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and neglect of personal appearance and hygiene. The examiner concluded that the Veteran’s functional impairments would negatively impact all forms of work environments, including sedentary ones. After review of all of the evidence, the Board finds that the Veteran’s PTSD symptomatology was more disabling than the rating of 50 percent indicated. In light of behavior manifested by panic attacks, difficulty adapting to stressful circumstances (including work or a work-like setting), obsessional rituals which interfere with routine activities, near-continuous depression affecting his ability to function appropriately, and effectively, and persistent irritability approximating impaired impulse control, the Board finds that the criteria for a 70 percent rating have been met for from October 19, 2011 to June 13, 2019. The Board also finds that the criteria for a 100 percent rating have not been met prior to June 13, 2019. While the Veteran had significant social impairment, there is no probative evidence that there was total social impairment at any time prior to June 13, 2019. He is able to live alone and leave the home to accomplish daily activities such as shopping. The Board considered the Veteran’s occupational limitations and finds that a total disability rating based on unemployability was not warranted prior to its current effective date of May 6, 2017. Although the Veteran reported difficulty interacting with fellow employees and supervisors, in his August 2018 claim for a TDIU, he reported working for VA until May 2017 and that he applied for a number of other positions as a human relations assistant, Transportation Security Administration Officer, and accounting technician. A concurrent resume showed a variety of skills and experience and suggested his interest and capacity for employment. Severance of Service Connection Service connection is warranted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Once service connection has been granted, it can be severed only upon the Secretary’s showing that the final rating decision granting service connection was “clearly and unmistakably erroneous,” (CUE) and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105 (d), (i); see also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). A post decisional change in diagnosis must be based on all accumulated evidence. In Andino v. Nicholson, 498 F.3d 1370 (Fed Cir 2007), the Federal Circuit required that severance be based on medical opinion considering all the accumulated evidence of record. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). 2. Severance being proper, restoration of service connection for a right eye macular scar 3. Severance being improper, restoration of service connection for a left eye posterior subcapsular cataract The Veteran asserts that severance of the service connection for the right eye macular scar and left eye posterior subcapsular cataract was improper because the evidence did not support a clear and unmistakable error. See NOD, November 2019. A review of the evidence of record revealed a November 2000 entrance examination report which listed the Veteran’s distant vision as 20/400 bilaterally; and near vision as 20/200 bilaterally. STR-Medical-Photocopy, October 2014 at p.2 of 3. April 2002 pre-op and post-op documents reflect that the Veteran underwent photorefractive keratectomy (PRK) surgery. See STR-Medical, October 2014 at p.29 of 58. On January 2003, the Veteran complained of eye pain after tree branch struck him in both eyes. See STR-Medical-Photocopy, October 2014 at p.1 of 2. The Veteran reported that he was able to see with pain and that his vision is normal. The Veteran was diagnosed with a scratched right eye. A drawing of the injury shows a scratch along the bottom of the cornea. On an August 2004 report of medical history, the examiner noted that the Veteran underwent PRK in 2002 with good results with reports of “‘starbursts’ aka ‘halos’ that do not bother patient.” See STR-Medical at p.29 of 58. In October 2014, the Veteran submitted a claim for cataracts, posterior subcapsular. See VA 21-526EZ, October 2014. In November 2014, the Veteran underwent a comprehensive eye examination. The Veteran was diagnosed with posterior subcapsular cataracts OS, macular scarring OD, and astigmatism OU. See C&P Exam, May 2015. In April 2015, the Veteran submitted a written statement. See Correspondence, April 2015. The Veteran reported that a branch covered in snow and ice broke and hit him across both eyes and nose with so much force that he could not force his eye open for 15 to 30 minutes. The Veteran reported that he received a laceration across his left eye. Additionally, the Veteran reported that after the debris was cleaned out of his eye, a balm was pushed into his eye and around his eye socket; and his left eye lid has been drooping since then with his vision worsening. In May 2015, the Veteran was afforded a VA eye conditions examination. See Capri, May 2015. The examiner noted that the cause of the current right eye condition was unknown. The examiner opined, “The trauma occurred apparently mainly to the right eye (the eye without the cataract), but the impact, to one degree or another, affected both eyes.” However, the examiner determined that it was less likely that the blunt trauma to the eyes resulted in the Veteran’s current left eye condition as this would have resulted in traumatic cataract, which does not cause a continual decline in vision, and not posterior subcapsular cataract. The examiner found that the Veteran’s current left eye condition was not caused by or related to his inservice cornea abrasion or the incident which led to the abrasion. The examiner noted that the direct exposure of the eye to the laser energy during refractory surgery can cause cataracts, in both patient who received LASIK and PRK, although most often in LASIK patients. The type of refractory surgery determines the amount of laser exposure. Additionally, the examiner noted that corticosteroids are known to cause cataract formations with insufficient research as to the relationship between duration and causation, with formation after short duration in rare cases. The examiner noted that the literature was not definitive as to PRK and PSC; however, short term use of steroids associated with surgery and genetics may increase susceptibility. The Board notes, in this instance, there are no records associated with the Veteran’s claims file which describe the Veteran’s refractory procedure. The examiner opined, “the veteran’s current complaint of cataract, posterior subcapsular, is as likely as not (50 percent probability) caused by or related to his inservice PRK surgery.” The examiner provided a full history of the Veteran’s medical history, conducted a physical examination, noted the 2014 diagnoses from the comprehensive examination, and considered the Veteran’s lay statements. Additionally, the examiner considered all factors including, the actual procedure, post-op treatment, and genetics in formulated his opinion. As such, the Board finds the opinion to have high probative value. A May 2015 rating decision granted service connection for cataracts posterior subscapular, left eye (hereafter referred to as left eye condition) with a noncompensable rating effective October 16, 2014; and macular scar right eye (hereafter referred to as right eye condition) with a noncompensable rating effective October 16, 2014. In June 2015, the Veteran requested an increased rating for his left eye condition. See VA 21-526EZ, June 2015. In June 2015, the Veteran requested extraschedular consideration for “the posterior subcapsular cataract in the right eye. See Disability Benefits Questionnaire, June 2015. The Veteran reported that it is excessively difficult to adjust to high contrast environments due to different levels of focus. Id. As previously discussed, the Veteran was diagnosed with a macular scarring of the right eye and not with posterior subcapsular cataract. Additionally, a left eye laceration had not been previously diagnosed or mentioned prior to the Veteran’s June 2015 statement. In August 2015, the Veteran was afforded another VA examination for the left eye. See Capri, August 2015: August 2015 VA exam. Examiner noted left dense central posterior subcapsular cataract and that cataract is responsible for the Veteran’s visual impairment of the left eye. The examiner noted, “due to the glare in his left eye, he could become incapacitated if he confronted with a bright light in otherwise low light conditions.” Id. After examination, the examiner found that the left eye cataract would likely worsen over time and require surgical correction. Id. An August 2015 rating decision continued the noncompensable rating for the left eye condition. A June 2017 optometry note reflects that the Veteran reported having white flashes for about a year, more at night and that his he was experiencing blurry vision. See Medical Treatment Record-Government Facility, July 2017. In July 2017, the Veteran requested an increased rating for left and right eye conditions. See VA 21-526EZ, July 2017. In October 2017, the Veteran was afforded another C&P Exam for both eyes. See C&P Exam, October 2017. The examiner opined that the left eye condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran’s claimed left eye posterior subcapsular cataract was not caused by the in-service steroid eye drop use post-PRK procedure, because the Veteran actually stated he did not use the steroid eye drops except for about 2 days. The examiner determined that treatment duration absolutely could not cause cataract formation. The Board notes that the examiner did not address whether the surgery, in combination with post-op treatment and genetics proximately caused the Veteran’s left eye condition as the May 2015 opinion did. As such, the Board finds that the October 2017 opinion has less probative value than the May 2015 opinion. The Board notes that no opinion was offered for the right eye condition. An October 2017 rating decision proposed the severance of the left and right eye conditions based on the finding that the May 2015 rating decision clearly and erroneously granted service connection without a medical opinion that was properly supported by a valid rationale and/or by the evidence of record. The RO stated that a noncompensable rating for the eye conditions was erroneous because the grant was based on a physicians’ records and not on a VA Compensation and Pension examination. In January 2018, the Veteran receive notice of the finding of CUE in the May 2015 rating decision. See VCAA/DTA Letter, January 2018. Consequently, a November 2018 rating decision severed service connection effective February 1, 2019. In an April 2020 statement of the case (SOC), the RO stated that because the PRK was an elective surgery, any known residuals do not qualify as service-connected disabilities; and therefore, the grant of service connection is clear and unmistakable error. Additionally, the RO stated that although the Veteran sustained an abrasion on his right eye, there was no evidence of a laceration to the eye or a scar at discharge; and that an examiner had determined that his current macular scarring was from an unknown etiology unrelated to service. See Capri at p.2 of 13. The Board finds that these determinations, in regard to the Veteran’s right eye condition are correct. The Veteran did sustain a right eye cornea abrasion during service and has a current right eye macular scar. The May 2015 examiner noted that there was no condition related to the previous injury following treatment of the right cornea abrasion. However, was unable to determine the etiology of the macular scar. As no medical opinion has been obtained linking the current macular scar with the cornea abrasion, the grant of service connection for a right eye macular scar was clearly and unmistakably erroneous. As the May 2015 rating decision failed to properly apply the appropriate regulations for service connection, severance was proper and restoration for service connection for a right eye macular scar is denied. In regard to the left eye condition, the Board finds that the RO’s determinations are incorrect. As previously noted and discussed, the Veteran was afforded a VA C&P eye conditions examination in May 2015, which included a full historical and physical examination. See Capri, May 2015. Review of the examination report reflects that the examination was conducted by a VA optometrist. The October 2017 RO in the erroneously found that the May 2015 opinion was based on the November 2014 comprehensive eye exam, which provided the results of a physical eye exam and a current diagnosis. The May 2015 C&P examination report was not based on the 2014 examination solely, but takes into consideration the exam results in determining the severity and progression of the cataract. As such, the Board finds that the RO erroneously mischaracterized the May 2015 C&P medical opinion as a ‘physician’s record’ and used this as basis to determine that a clear and unmistakable error had occurred in granted service connection for the left and right eye conditions. This error was also used as the basis for the November 2018 rating decision which severed service connection effective February 2019. Regarding the RO’s determinations in the April 2020, the Board notes that a governing regulation provides that the usual effects of surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be service-connected unless the disease or injury is otherwise aggravated by service. See 38 C.F.R. § 3.306 (b). The Veteran did elect to have PRK service. The Board notes that his job in the military was an infantryman, but the Veteran has not asserted that PRK was needed for his occupation. The Board notes that there are no post-operative notes from the 2002 PRK. However, the Veteran suffered the bilateral eye trauma within six months of the surgery. The medical report from the 2003 bilateral eye trauma reflects that both eyes were struck, were red and watering, and flushed with eye irrigants. See STR-Medical-Photocopy at p.2 of 2. The Veteran also reported pain and loss of vision and a consult was sent to ophthalmology. No records from the consult are not associated with the Veteran’s claims file. However, during the Veteran’s 2004 separation examination he reported starbursts/halos that did not bother him. See STR-Medical, October 2014 at p.29 of 58. The Board has described the favorable May 2015 opinion above which found that the impact of the 2003 trauma affected both eyes and that the PRK surgery, post-op treatment, and genetics possibly made the Veteran more susceptible to cataract formation. In contrast, the October 2017 opinion determined that the Veteran’s left eye cataract was not due to post-op steroid eye drops because the Veteran reported using the drops for only two days. Both eye doctors reviewed the Veteran’s claims file and provided rationale for their opinions. The evidence of in the case is at least in relative equipoise as to the theories of service connection for the left eye condition and did not reach the level of clear and unmistakable error. The Board concludes that the severance of service connection was improper because there is probative evidence that the conditions are related to his service. The Board finds that the but for the RO’s erroneous determination that the medical opinion was based on a physician’s report and not an actual C&P medical opinion, all doubt would have been resolved in the Veteran’s favor, and severance of service connection would not have been proposed and ultimately effectuated. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board finds that severance was improper; therefore, restoration of service connection for a left eye posterior subcapsular cataract is granted. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. 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, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 4. Entitlement to service connection for hypertension The Veteran asserts that he has had hypertension since discharge and throughout his treatment at the VA. See VA 21-4138, August 2016. Additionally, the Veteran asserts that his increase in blood pressure coincides with his anxiety. The Board notes that the Veteran has not been diagnosed with hypertension. A review of the evidence of record reflects that the Veteran had one occurrence of a blood pressure reading of 145/92 during an undated examination of the Veteran’s lower back. See STR-Medical at p.49 of 58. The Veteran’s service treatment records are silent for treatment for or diagnosis of hypertension or high blood pressure. A July 2004 VA nursing assessment report lists the Veteran’s blood pressure as 154/94. See Medical Treatment-Government Facility, March 2006 at p.8 of 11. An August 2004 separation examination report lists blood pressure readings of 143/85 and 135/82. STR-Medical at p.33 of 58. A September 2005 VA examination lists the Veteran’s blood pressure as 125/84. See Medical Treatment-Government Facility at p.4 of 11. A February 2006 VA peripheral nerve examination report contains a notation that the Veteran has no history of hypertension or vascular disease and blood pressure readings of 138/84, 136/82, and 130/80. See Medical Treatment Record-Government Facility, January 2012 at p.2 of 8. An April 2006 VA primary care note reflects a reading of 129/75. See Medical Treatment Record-Government Facility, April 2007. A November 2006 VA primary care note reflects a reading of 130/78. Id. A December 2007 VA triage note reflects a reading of 133/92. See Medical Treatment Record-Government Facility, August 2008. In August 2016, the Veteran submitted a claim for hypertension. See VA 21-526EZ, August 2016. A January 2017 rating decision denied service connection. The RO noted that the evidence did not show an event, disease or injury in service, or complaints, treatment, or diagnosis for this condition. The Board acknowledges the Veteran’s assertion that his hypertension is secondary to his PTSD. However, the Veteran does not have a diagnosis of hypertension, nor does the record support a finding that his blood pressure has been continuously elevated since discharge from military service. The Veteran asserts that his rise in blood pressure coincides with his anxiety. However, the Veteran has provided no medical evidence linking these elevated readings with his anxiety. Based on the foregoing, the Board has determined service connection for hypertension is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for traumatic brain injury (TBI) The Veteran asserts that he is having symptoms consistent with TBI, to include memory problems and exposure he had during service. See VA 21-4138, August 2016. A review of the evidence of record reveals a June 2004 post deployment examination report noting that the Veteran reported having difficulty remembering since returning from deployment and often experiencing excessive vibration. See STR-Medical, October 2014 at p.7 of 50. The August 2004 separation report reflects that the Veteran reported having poor short term memory for 7 months, but denied head trauma, seizures, or tonic-clonic motion. See STR-Medical at p.28, 29 of 58. The examiner noted that the Veteran’s short term memory loss was consistent with adult attention deficit disorder. Id. at p.32 of 58. During the February 2006 VA peripheral examination, the Veteran reported that while serving in Baghdad, an IED exploded next to his Bradley fighting vehicle, but it did not affect him negatively. See Medical Treatment Record at p.4 of 8. The Veteran reported having problems with memory and concentration. Id. at p.6 of 8. However, the examiner attributed his problems to possibly adult attention deficient disorder or possibly PTSD related to his Iraq experiences. Id. An October 2014 VA eye examination contains a notation that the Veteran was in a motor vehicle accident at age 10 resulting in a scar on his forehead; and multiple head injuries in military. See Medical Treatment Record at p.4 of 7. In August 2016, the Veteran submitted a claim for TBI. See VA 21-526EZ, August 2016. In an August 2016 statement, the Veteran having memory problems due to TBI. See VA 21-4138, August 2016. A January 2017 rating decision denied service connection. The RO noted that the evidence did not show an event, disease or injury in service, or complaints, treatment, or diagnosis for this condition. Additionally, the RO noted that the Veteran denied experiencing any TBI related events during development in earlier VA treatment records, but in 2013 and 2014, mentioned head injury with during a parachute jump in 2002. An examination was requested based on the Veteran’s receipt of the Combat Infantryman Badge, but he failed to report. In February 2017, the Veteran was afforded a VA TBI examination. See C&P Exam, February 2017. The examiner noted that in April 2014, the Veteran was diagnosed with TBI by a VHA physiatrist, psychiatrist, neurosurgeon, or neurologist based on the Veteran’s lay statements. The Veteran reported that in January or February of 2002, during airborne training, he hit the ground hard during a night jump and “came to” about 15 to 20 minutes later. He reported that he that following the incident, while deployed, he was made fun of for not remembering things and that he himself did not notice until 2012 when he was unable to pass some classes. Assessment of the facets of TBI-related cognitive impairment and subjective symptoms of TBI revealed subjective complaints of mild memory loss and occasional instances of forgetting what he is talking about. The examiner indicated that January 2014 and December 2016 MRIs of the brain revealed small stable white matter signaling abnormality in the left frontal lobe that could be related to remote trauma or infarct. Additionally, the examiner noted that in February 2014 a VA neurologist opined that the MRI findings were likely due to a 12 year history of smoking and likely does not have any impact on the Veteran’s cognitive or psychiatric symptoms. The examiner found that the Veteran does meet the criteria for a mild TBI related to the injury during airborne training in 2002. The examiner noted that the Veteran did not seem to have any residuals from it other than slowed processing. A February 2017 rating decision continued the denial of service connection stating that although the examiner listed an assessment of residuals of a traumatic brain injury associated with a reported airborne training injury, the Veteran’s service treatment records were silent for complaints, treatment, or diagnosis of this condition. Further, the RO found that the record failed to show a current diagnosis of TBI related to an in-service event. The Board finds that although the February 2017 examiner opined that the Veteran’s TBI related symptoms are due to his reported 2002 jump accident, there was no discussion regarding the Veteran’s report of an IED explosion near his Bradley and the exposure to excessive vibrations while deployed. As such, the Board finds that a remand is necessary in order to obtain an addendum opinion discussing the relationship, if any, of the IED explosion and exposure to excessive vibrations during deployment in the diagnosis of TBI and the MRI findings. 2. Entitlement to service connection for musculoskeletal-neck/upper back (cervical spine) also claimed as arthritis The Veteran contends that his diagnosis of congenital spinal stenosis was incorrect and that his upper spinal column pain and nerve issues are due to him carrying significant amounts of weight on his shoulders and back; participating in multiple jumps with the 82 Airborne unit; and having to wear excessive amounts of gear, to include body armor, LBV with ammo, rucksack with communications equipment, and CLS equipment weighing more than 120 pounds. See VA 21-4138, August 2016; Form 9, December 2019. The Veteran reported that during his 14 month deployment have cause him a lot of pain and discomfort throughout the years after service; that his face goes numb when he turns his head too fast; and that he has no dexterity in his right arm. Id. The Board notes that the Veteran’s service treatment records are negative for complaints of or treatment for symptoms related to neck pain. A September 2005 VA examination report reflects that the Veteran reported having no neck pain, but decreased sensation in the left shoulder and upper arm area. See Medical Treatment Record at p.2 of 11. The Veteran reported having unexplained paresthesias the left shoulder area for approximately five months. Id. A September 2005 VA x-ray of the cervical spine showed no fractures, degenerative spurring, or intravertebral foramina encroachment. See Medical Treatment Record-Government Facility, March 2006 at p.5 of 6. A February 2006 VA x-ray of the cervical spine showed normal vertebral alignment, no skeletal deformities nor other osseous, and no significant arthritic changes. Id. at p.4 of 6. During a November 2009 VA follow up appointment for dizziness, the Veteran reported having some mild neck discomfort left paraspinal with no reported injury. See Capri, August 2016 at p.468 of 643. A November 2015 cervical MRI revealed congenital spinal stenosis and mild degenerative changes at C3-C4 and C5-C6. See Capri, January 2016 at p.380, 381 of 386. A November 2015 x-ray of the cervical spine revealed possible positional cervical lordosis. Id. at p.381 of 386. A December 2015 VA emergency triage note reflects that the Veteran reported having neck pain radiating down right arm for approximately 9 to 10 weeks. Id. at p.107 of 386. In a January 2016 correspondence, the Veteran asserted that he believed the diagnosis of congenital spinal stenosis was incorrect because there is no one in his family with this condition. See Buddy/Lay statement, January 2016. The Veteran stated that he has never had back problems until after joining the Army and during his service he was exposed to significant amounts of weight on his shoulders and back; and wore excessive amounts of gear such as body army, LBV with ammo, rucksack with communication equipment, and CLS equipment weighing more than 120 pounds. Id.; see also Correspondence, August 2016. A January 2017 rating decision denied service connection. The RO noted that the evidence did not show an event, disease or injury in service, or complaints, treatment, or diagnosis for this condition. The RO noted the 2005 and 2006 normal cervical spine x-ray’s; the first report of neck pain with no injury in November 2009; the 2016 x-ray showing minimal degenerative changes; and 2015 and 2016 MRI’s showing congenital spinal stenosis and mild degenerative changes. Additionally, the RO noted that the claim for arthritis was evaluated with the neck claim since the Veteran had not submitted clarification of the arthritis claim. An April 2019 MRI of the cervical spine revealed relatively congenitally small canal and mild superimposed degenerative changes. The Veteran has not been afforded a VA examination for this issue. The Board finds that a VA examination and opinion is warranted in order to determine the nature and etiology of the Veteran’s cervical spine condition. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s has residual manifestations of a TBI that is at least as likely as not related to an in-service reported exposure to IED explosion and excessive vibrations. In discuss the relationship, if any, of the IED explosion and exposure to excessive vibrations during deployment in the diagnosis of TBI and the MRI findings. Indicate whether any manifestations are already properly attributed to PTSD. The entire claims file, and a copy of this REMAND, must be reviewed. The examiner is to conduct all necessary tests and studies. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiners should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion, or other information needed to provide the requested opinion. 2. Schedule the Veteran a cervical spine VA examination with the appropriate clinician in order to determine the nature and etiology of the Veteran’s current cervical spine condition. The entire claims file, and a copy of this REMAND, must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. The examiner must opine whether it is at least as likely as not that the Veteran’s cervical spine condition was caused by or proximately due to his military service. The examiner is asked to discuss the Veteran’s lay statements regarding carrying significant amounts of weight on his shoulders and back; participating in multiple jumps with the 82 Airborne unit; and having to wear excessive amounts of gear, to include body armor, LBV with ammo, rucksack with communications equipment, and CLS equipment weighing more than 120 pounds. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If it is not possible to provide the requested opinion without resort to speculation, the examiners should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion, or other information needed to provide the requested opinion. 3. After completing the requested actions, readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.