Citation Nr: 21015696 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-55 846 DATE: March 18, 2021 ORDER New and material evidence having been received, the claim for service connection for a neck condition is reopened. New and material evidence having been received, the claim for service connection for a right eye condition is reopened. Service connection for a neck condition is granted. Service connection for a right eye condition is granted. Service connection for a bilateral knee condition is granted. Service connection for post-traumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The evidence received since the last final rating decision, including a July 2015 private medical opinion, relates to an unestablished fact necessary to substantiate the claim of service connection for a neck condition and raises a reasonable possibility of substantiating the claim. 2. The evidence received since the last final rating decision, including a May 2019 private medical opinion, relates to an unestablished fact necessary to substantiate the claim of service connection for a right eye condition and raises a reasonable possibility of substantiating the claim. 3. The probative evidence of record including the Veteran’s service treatment records, several private medical opinions and the Veteran’s own competent and credible testimony, support a finding that the Veteran’s diagnosed neck condition had its onset during service and has persisted since. 4. The probative evidence of record including the Veteran’s service treatment records, several private medical opinions and the Veteran’s own competent and credible testimony, support a finding that the Veteran’s diagnosed right eye condition had its onset during service and has persisted since. 5. The probative evidence of record including the Veteran’s service treatment records, several private medical opinions, several buddy statements, and the Veteran’s own competent and credible testimony, support a finding that the Veteran’s diagnosed bilateral knee condition had its onset during service and has persisted since. 6. The probative evidence of record including several private medical opinions, several buddy statements, and the Veteran’s own competent and credible testimony, support a finding that the Veteran’s diagnosed PTSD is causally related to traumatic events during service, including witnessing the death of a fellow servicemember and being ordered to move his body. CONCLUSIONS OF LAW 1. New and material evidence has been received; the claim of service connection for a neck condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received; the claim of service connection for a right eye condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria have been met for service connection for a neck condition. 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria have been met for service connection for a right eye condition. 38 C.F.R. §§ 3.102, 3.303, 3.385. 5. The criteria have been met for service connection for a bilateral knee condition. 38 C.F.R. §§ 3.102, 3.303, 3.385. 6. The criteria have been met for service connection for PTSD. 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014, June 2016 and November 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, a Board hearing was held before the undersigned. New and Material Evidence Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156 (a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim for service connection for a neck condition. Factual Background Service connection for a neck condition was denied in a July 2013 rating decision. The Veteran did not timely appeal the denial but submitted evidence including a July 2015 private medical opinion from his physician who opined that the Veteran’s neck condition was causally related to his service-connected back condition. In a December 2015 rating decision, the RO determined that the Veteran had submitted new and material evidence and thus reopened the claim. The Board notes that the Veteran has also submitted three additional private medical opinions which support his claim that his neck condition is causally related to his service-connected back condition. See August 2016, March 2018 and October 2019 opinions. Analysis Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Given that the Veteran’s claim for service connection for a neck condition was denied on the basis of a lack of nexus between his diagnosed condition and service, the Board finds this evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Accordingly, the claim is reopened. 2. Whether new and material evidence has been received to reopen the claim for service connection for a right eye condition. Factual Background Service connection for a right eye condition was denied in a July 2014 rating decision. The rating decision was not appealed nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. A May 2016 rating decision denied his claim again and the Veteran appealed to the Board. Evidence received since these decisions includes a May 2019 private medical opinion which indicates that the Veteran has a diagnosis of hypertensive retinopathy which was caused by his hypertension. Analysis Given that the Veteran’s claim for service connection for a right eye condition was denied on the basis of a lack of nexus (causal link) between his diagnosed condition and service, the Board finds this evidence is new to the record, relates to previously unestablished facts that support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Accordingly, the claim is reopened. Service Connection Legal Criteria Generally, direct service connection may be established for a disability resulting from a disease, injury, or event, incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the following must be shown: (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 or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). “Secondary” service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 3. Service connection for a neck condition is granted. Factual Background The Veteran reported at a June 2012 medical examination that he strained his neck and back during active duty. The Veteran’s service treatment records confirm that he reported neck tenderness during service. At a June 2013 VA examination, the conducting physician opined that it was less likely than not that the Veteran’s neck condition was causally related to service. As a rationale, the conducting physician explained that that the Veteran’s service treatment records were silent for injuries or reports about his back. The physician also opined that the Veteran’s neck condition was not causally related to his back condition because there is no causation or pathophysiology connecting the two conditions. The Veteran submitted a July 2015 private medical opinion from his physician who opined that it was more likely than not that the Veteran’s neck condition is aggravated or caused be his service-connected back condition. The physician explained that his findings have been confirmed through physical examination and the patient’s medical history. At a September 2015 VA examination, the conducting physician opined that it was less likely than not that the Veteran’s neck condition was causally related to his service-connected back condition. As a rationale, the physician explained that there is no causality between the two conditions. The Veteran submitted an August 2016 private medical opinion from his physician who opined that, upon reviewing the Veteran’s current treatment records, it was more likely than not that his neck condition was aggravated or caused by his service-connected back condition. The Veteran submitted a March 2018 private medical opinion from his physician who opined that it was at least as likely as not that the Veteran’s neck condition was causally related to his back condition. As a rationale, the physician explained that the Veteran is not able to bend and sit for long periods of time and that twisting causes pain. The Veteran submitted an October 2019 private medical opinion from his physician who opined that it was at least as likely as not that the Veteran’s neck condition was a direct result of his lumbar spine disorder. As a rationale, the physician explained that the Veteran’s neck condition was caused by abnormal posture due to leg length deficiency on the right side. At the February 2021 Board hearing, the Veteran provided competent and credible testimony that his neck problems began during service. The Veteran had a slip and fall accident during service which caused an injury to his back. The Veteran was subsequently diagnosed with an injury to his L-5. Analysis The medical evidence of record indicates that the Veteran has a current diagnosis of a neck condition. What remains for consideration is whether the Veteran’s neck condition is causally related to service. The Board notes that the Veteran provided competent and credible testimony that he began to notice neck problems during service which have persisted since. The Board also notes that the Veteran’s service treatment records contain a report of neck tenderness. Accordingly, the Board finds that the preponderance of the evidence is in favor of a finding that the Veteran incurred a neck condition during service which has persisted since exiting from service. There are four positive opinions of record which indicate that the Veteran’s neck condition is causally related to his service-connected back condition. See July 2015, August 2016, March 2018 and October 2019 opinions. The Board assigns these opinions probative value because the physicians indicated that they reviewed the claims file and supported their opinions with rationales. There are also two negative opinions of record. See June 2013 and September 2015 VA opinions. However, the examiners did not support their rationale that there is no causality between the Veteran’s neck and back condition with any medical literature. Additionally, the June 2013 VA examiner opined that the Veteran’s service treatment records are absent for reports of back or neck injuries which is factually inaccurate. As such, the Board does not assign probative value to these opinions. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Accordingly, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s neck condition is causally related to service. 4. Service connection for a right eye condition is granted Factual Background The Veteran reported having redness in his right eye during service and was diagnosed with a subconjunctival hemorrhage. See service treatment records. After exiting service, the Veteran sought treatment in March 2004 after he noticed he was having difficulty seeing out of his right eye. The Veteran submitted an April 2012 private medical opinion from his physician who opined that his right eye visual impairment was more likely than not related to his military duty. The physician indicated that the Veteran reported problems with vision in his right eye following a hard strain while on active duty. The physician indicated that the Veteran had a subconjunctival hemorrhage which is usually self-limiting. The physician also stated that the Veteran reported seeing floaters, flashes of light and having issues with his peripheral vision. The Veteran also reported having issues seeing words on paper or reading signs at distance. The Veteran reported in a March 2017 statement that during his time as an air traffic controller, he was never made aware of the abnormally high pressure in his eyes. The Veteran further reported that after exiting from service in March 2003, he had a central retinal vein occlusion of the right eye which caused permanent loss of vision in the right eye. At an October 2017 VA examination, the conducting physician opined that it was less likely than not that the Veteran’s right eye condition of open angle glaucoma was due to his history of subconjunctival hemorrhage. As a rationale, the physician explained that there is no medical or research study linking subconjunctival hemorrhage to open angle glaucoma. The Veteran submitted a March 2019 private medical opinion from his physician who opined that the Veteran has a diagnosis of hypertensive retinopathy. The physician opined that the Veteran’s uncontrolled hypertension has led to blind spots in the right eye. At the February 2021 Board hearing, the Veteran provided competent and credible testimony that he experienced “high pressure” in his eyes during service which was never treated. The Veteran testified that his vision began to get worse and he was later diagnosed with hypertensive retinopathy. The Veteran explained that he was told that hypertensive retinopathy was typically seen in patients in their 50s while he was only in his 20s at the time of diagnosis. The Veteran testified that he has missing spaces in his field of vision as the result of what he calls “explosions” when the pressure got too high. Analysis The evidence of record indicates that the Veteran has a currently diagnosed right eye condition. What remains for consideration is whether the Veteran’s right eye condition is causally related to service. The Veteran provided competent and credible testimony that he began to notice right eye issues during service because of the elevated pressure which have persisted since. In addition, the Veteran’s service treatment records contain a report of subconjunctival hemorrhage in the right eye. Accordingly, the Board finds that the preponderance of the evidence is in favor of a finding that the Veteran incurred a right eye condition during service which has persisted exiting from service The Board assigns probative value to the April 2012 and March 2019 private physicians’ opinions because they indicated that they were familiar with the Veteran’s medical history and supported their opinions with rationales. The Board cannot assign probative value to the October 2017 VA examiner’s opinion because they did not consider whether the Veteran’s right eye condition was causally related to his hypertension but rather limited the scope of their analysis to his in-service diagnosis of subconjunctival hemorrhage. Accordingly, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s right eye condition is causally related to service. 5. Service connection for a bilateral knee condition is granted. Factual Background The Veteran reported bilateral knee discomfort during service as a result of running, lifting and squatting. See service treatment records. At an October 2015 VA examination, the conducting physician diagnosed the Veteran with a bilateral knee condition. The physician opined that it was less likely than not that the Veteran’s bilateral knee condition was related to service. As a rationale, the physician explained that the Veteran’s service treatment records do not record any knee injuries. The physician further explained that the Veteran separated from the military in 2002 and thus there is a 13-year time gap between service and the examination. The Veteran submitted a November 2015 private medical opinion from his physician who opined that it was more likely than not that the Veteran’s bilateral knee condition is aggravated or caused by his service-connected back condition. The Veteran submitted a July 2016 private medical opinion from his physician who opined that it was more likely than not that the Veteran’s bilateral knee condition is directly related his service. The physician indicated that they had reviewed the in-service medical treatment records before offering this opinion. The Veteran reported in a September 2017 statement that he dislocated his left and right knees during service. The Veteran also reported that his treating physician prescribe NSAIDs but did not provide a diagnosis for the knee condition. The Veteran indicated that he went to a knee specialist after exiting service and was diagnosed with chondromalacia patella in the right and left knees. The Veteran also submitted buddy statements from two fellow servicemembers who both indicated that they witnessed him reporting knee issues during service. See July 2018 and August 2018 statements. The Veteran submitted a December 2019 private medical opinion from his physician who opined that it was more likely than not that the Veteran’s bilateral knee condition is directly related his service. The physician indicated that they had reviewed the in-service medical treatment records before offering their opinion. At the February 2021 Board hearing, the Veteran provided competent and credible testimony that he had a “chit” releasing him from physical training. The Veteran testified that he did not do any physical training during the last couple of years of service due to his knee swelling. Finally, the Veteran testified that he took a lot of over the counter medication during service. Analysis The evidence of record indicates that the Veteran has a currently diagnosed bilateral knee condition. What remains for consideration is whether the Veteran’s bilateral knee condition is causally related to service. The Veteran provided competent and credible testimony and statements that he incurred knee injuries during service which have persisted since. In addition, the Veteran’s service treatment records contain a report of bilateral knee discomfort. The Board assigns probative value to the July 2018 and August 2018 buddy statements recalling that the Veteran reported knee pain to leadership during service. The Board also assigns probative value to the November 2015, July 2016 and December 2019 private physicians’ opinions because they indicated that they were familiar with the Veteran’s medical history. However, the October 2015 VA opinion relies on the inaccurate factual premise that the Veteran’s service treatment records do not include reports of bilateral knee injuries during service. As such, the Board does not assign probative value to this opinion. See Reonal, supra. Accordingly, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s bilateral knee condition is causally related to service. 6. Service connection for PTSD is granted. Factual Background The Veteran submitted a November 2015 private medical opinion from his physician who diagnosed the Veteran with PTSD. The physician indicated that the Veteran has occupational and social impairments, with deficiencies in most areas, such as social relations, family relations, judgment, thinking, mood and work. The physician opined that it was more likely than not that the Veteran’s PTSD stemmed directly from his military service. The Veteran provided a November 2015 statement that, during service, he witnessed a jet crash and that his detail was responsible for carrying the corpse of the deceased pilot across the fight deck. The Veteran also submitted a January 2018 buddy statement from a fellow servicemember who reported that he and the Veteran witnessed a jet crash during service a mere 50 feet from where they were standing. The servicemember further reported that he and the Veteran were ordered to remove the dead pilot. Finally, the servicemember reported that he and the Veteran were handed body parts of the deceased pilot to turn over to medical personnel. The Veteran submitted an August 2018 buddy statement from another fellow servicemember who reported that he and the Veteran were part of a 3-man crew who witnessed the jet crash and were responsible for removing the pilot’s body. The servicemember reported that the pilot was covered in blood. The servicemember further reported that he observed that the Veteran was shaken up from the incident. The Veteran submitted a March 2019 private medical opinion from his physician who opined that the Veteran’s PTSD was as likely as not caused by the event involving the deceased pilot during service. At the February 2021 Board hearing, the Veteran provided competent and credible testimony that he was responsible for carrying the servicemember’s dead body after the crash. The Veteran testified that the servicemember’s body was in pieces and he has recurring nightmares about the incident. The Veteran also testified that his written statements about the traumatic event are accurate and truthful. Analysis The evidence of record indicates that the Veteran has a current diagnosis of PTSD. What remains for consideration is whether the Veteran’s PTSD is causally related to service. The Veteran provided statements and sworn testimony that he has nightmares from witnessing a traumatic event during service which included witnessing the death of a fellow servicemember and having to transport his body parts, and the Board finds the statements and testimony to be credible and accurate. The Board also assigns probative value to the January 2018 and August 2018 buddy statements from fellow servicemembers who verified that they were present with the Veteran when they witnessed the jet crash and recovery of the pilot’s body. The Board also assigns probative value to the November 2015 and March 2019 private physicians’ opinions because they indicated that they were familiar with the Veteran’s medical history. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s PTSD is causally related to service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.