Citation Nr: 23057789 Decision Date: 10/25/23 Archive Date: 10/25/23 DOCKET NO. 19-00 797 DATE: October 25, 2023 ORDER New and material evidence having been received, the previously denied claim for service connection for painful joints is reopened. Service connection for painful joints, specifically his shoulders and hips, is denied. Service connection for a bilateral eye condition, to include as secondary to post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. An August 2015 rating decision denied service connection for painful joints. The Veteran did not timely appeal this decision and it became final. 2. New and material evidence raising a reasonable possibility of substantiating the claim for service connection for painful joints has been added to the record since the August 2015 rating decision. 3. The evidence of record persuasively favors the conclusion that it is less likely than not that the Veteran's painful joints were either incurred in or otherwise caused by his active service. 4. The evidence of record persuasively favors the conclusion that it is less likely than not the Veteran's bilateral eye condition was either incurred in or otherwise caused by his active service, to include being caused or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's previously denied claim for service connection for painful joints have been met. 38 U.S.C. § 501; 38 C.F.R. § 3.156. 2. The criteria for service connection for painful joints have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for a bilateral eye condition, to include as secondary to PTSD, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 2003 to May 2006 and from March to April 2009, with additional periods of reserve service. He also served in Kuwait from January 2004 to April 2004. The Veteran provided testimony at a Board hearing in August 2023 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. By way of background, the Veteran's claim for painful joints was denied in an August 2015 rating decision. The Veteran did not appeal this decision, and it became final. The Veteran then submitted a claim for painful joints and a bilateral eye condition in March 2017. A June 2017 rating decision denied the Veteran's claims and found that the Veteran did not submit evidence related to his service connection claim for painful joints that was new and material. The Veteran appealed the June 2017 rating decision to the Board. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction (AOJ) may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d)(3). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim 38 U.S.C. § 5108. Here, as stated above, the Veteran's claim for service connection for painful joints was initially denied in August 2015. A June 2017 rating decision found that no new and material evidence had been submitted to reopen the claim, and the prior denial was continued. In November 2018, the AOJ issued a statement of the case (SOC) finding that no new and material evidence was submitted to reopen the previously denied claim. The pertinent evidence received since the previous denials includes testimony from the Veteran, who stated that he began to have problems with his shoulders and hips during basic training from running with his rucksack. These statements are presumed credible for the limited purpose of considering whether to reopen the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, as this evidence was not previously reviewed by the prior adjudicators, it constitutes both new and material evidence. As new and material evidence has been received, the claim for service connection for painful joints is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service relationship between the present disability and the disease or injury incurred in or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a). Painful Joints At the outset, the Veteran has contended that his painful joints include his shoulders and hips, and that these conditions began in service and have continued since then. The Veteran's service treatment records (STRs) do not show any complaints of or treatment for shoulder or hip conditions, despite the fact that the Veteran was treated for other things like shin splints, and back pain. The Veteran underwent a Gulf War examination in July 2015, but did not report any shoulder or hip issues. The Veteran underwent VA examinations in August 2018 for his hips and shoulders, as well as a Gulf War examination. The VA examiners found that the Veteran did not have current hip diagnosis, and that while his shoulder examination was normal, the Veteran was diagnosed with left bicipital tenontitis, and left acromioclavicular joint osteoarthritis. At the 2018 Gulf War examination, the Veteran noted hip, thigh, shoulder, and arm issues. The Veteran's post-service treatment records show that he first began complaining of left shoulder pain in 2016 and was given a steroid injection. In February 2017, he was seen again for left shoulder pain, and the physician stated there was no history of symptoms, and no known injury. A 2017 MRI showed no evidence of rotator cuff tendon tear or retraction, and the physician noted that the Veteran likely had bicipital tendinitis. In October 2022, the Veteran was seen in the emergency room for right hip pain, and it was noted he had mild arthritis. Two months later, the Veteran reported having experienced right hip pain over the past year. At the 2023 Board hearing, the Veteran testified that his joint pain was not Gulf War related, and that he had pain in all joints: back, shoulder, hips, and knees. He stated that he started having problems in basic training, and that it was due to running with his ruck sack which led to wear and tear on his body. He reported it got worse in 2004/2005, and that he went to therapy and was on a lot of painkillers. The Veteran stated he started going to the VA around 2006, and that he was still dealing with the joint pains from active duty, and continuing therapy. Here, the evidence does not show that the Veteran complained of or was treated for shoulder or hip conditions while in service, or that that there was a continuation of symptomatology since service. His STRs are silent for any treatment for hip or shoulder pain, despite that fact that he continuously sought treatment for other now service-connected conditions, such as back strain, and residuals of lower extremity stress fractures. Additionally, the first time the Veteran was seen for shoulder pain was in 2016, and his physician noted there was no history of symptoms of a left shoulder condition. Similarly, the first time the Veteran was seen for a hip condition was in October 2022, after having hip pain for the past year, not for more than a decade as would be needed for continuity of symptomatology from service. This is important as a person would be expected to provide accurate information to receive the best treatment and thus if he had been experiencing hip and shoulder problems since service, it seems unlikely he would have only reported hip pain for a year, or no history of a shoulder problem. The Veteran did not report having any musculoskeletal issues at the 2015 VA examination, but he was found to have left shoulder arthritis at the 2018 VA examination. Similarly, he was not found to have any hip conditions at the 2018 VA examination but was noted ot have arthritis in 2022. This evidence, coupled with the Veteran's other VA treatment records and STRs, supports a finding that his shoulder and hip conditions were not present in service, and that they began years after he left service. The Board acknowledges the Veteran's lay testimony that his joint problems began while in service and continued since then. He is considered competent to report what he may have experienced in service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, as stated above, the evidence does not show that he was ever treated for hip or shoulder conditions either in service or within one year of service. Here, the evidence shows the Veteran's hip and shoulder pain began at least a decade after service, and that while he testified to experiencing joint pain while in service, he is already service connected for those conditions. As such, service connection for joint pain, namely hip and shoulder pain, is denied. Bilateral Eye Condition The Veteran is also seeking service connection for a bilateral eye condition that he believes was due to his service, to include his service-connected PTSD. The Veteran's STRs show that in January 2004, the Veteran was cleared by optometry, but that he was near sighted, and needed glasses because he was mobilizing. In June 2004, the Veteran was treated for left eye irritation that had been going on for four days. He had no blurred vision but had a small swollen area in the corner of his eye, and redness around the eye. There was an eye consultation done the same day, however it was illegible. The Veteran reported that his distance vision was becoming blurry, and that direct sunlight also bothered him. The Veteran underwent VA examinations in 2017 for his headaches, where he reported experiencing blurred vision. The Veteran underwent a VA eye examination in July 2018 at which the VA examiner noted he did not have a current eye condition other than myopia (near-sightedness). The Veteran reported onset to be in 2004 after returning from Baghdad. The VA examiner opined that it was less likely than not that the Veteran's myopia was caused by service, to include being caused or aggravated by his PTSD. The Veteran's VA treatment records show that in December 2019 he was diagnosed with dry eye syndrome, and that he denied having any eye injuries or eye surgeries in the past. He reported having perfect vision before combat. In January 2018, the Veteran submitted a lay statement where he reported that the traumatic events in Iraq changed his senses in his brain to include his vision, and that his vision was not the same after returning to Kansas. At the 2023 Board hearing, the Veteran testified that there were a lot of explosions in Iraq, and that the impact started to mess with his vision. It began to make him dizzy, so he started to wear glasses, which he did not wear before. He stated he had dry eyes, vision problems, and burning in his eyes. He also stated that there was not a specific incident that led to his eye condition, that he was not hit with any shrapnel, and that he was not treated for any head or eye issues in 2004. The law states that congenital of developmental defects such as refractive errors of the eyes, as such, are not diseases or injuries withing the meaning of applicable legislation and are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). VA has recognized that refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. Here, the Veteran's STRs show that he sought treatment once for left eye irritation and that the medical officer found him to have redness and a small swollen area in the corner of his eye. He was not treated again for this condition in service, and the only other treatment notes of record regarding his eyes, were in reference to his myopia. Furthermore, the only other eye condition the Veteran has been diagnosed with aside from myopia, is dry eye syndrome, which was diagnosed 13 years after service. This supports a finding that the Veteran's dry eye syndrome was not a continuation of the left eye irritation he experienced in service, but rather a new condition. This is important especially in light of the fact that he was not treated for dry eye while in service or within one year of separation from service. The Board acknowledges the Veteran's contentions that the traumatic incidents he experienced in Iraq changed his senses to include his vision, and that he also experienced explosions and impacts during that time that affected his vision. However, as stated above, myopia is not a disease that is eligible for service connection. Regardless, the evidence shows that the Veteran needed glasses before mobilizing, and no competent medical evidence of record has been submitted that draws a connection between the Veteran's PTSD and/or his service, and his myopia. While the Veteran reported blurred vision at his VA headaches examination, he is already service connected for headaches. Additionally, he has not been diagnosed with a traumatic brain injury that was caused by service. Therefore, service connection for a bilateral eye condition is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth A. Gadson, 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.