Citation Nr: 1329339	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  06-31 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for blurred vision, to 
include as an undiagnosed illness. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

J. L. Prichard, Counsel


INTRODUCTION

The Veteran had active service from November 1984 to 
December 1997, including in the Southwest Asia Theater of 
operations from January 1991 to May 1991. 

This claim comes before the Board of Veterans' Appeals 
(Board) on appeal of a June 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Philadelphia, Pennsylvania. 

The Veteran and his spouse testified in support of these 
claims during a hearing held before the undersigned at the 
RO in May 2009. A transcript of this hearing is of record.

The Board remanded the Veteran's appeal in February 2010, 
August 2012, and May 2013.  

The Board has reviewed the Veteran's electronic record 
(Virtual VA) prior to rendering a decision in this case.  It 
does not contain any evidence not already in the claims 
folder or considered by the RO.  

The issue of entitlement to service connection for tinnitus 
has been raised by the record and was previously referred 
for adjudication by the Agency of Original Jurisdiction 
(AOJ).  The record does not show that the AOJ has 
adjudicated this issue.  Therefore, the Board does not have 
jurisdiction over it, and it is again referred to the AOJ 
for appropriate action. 


FINDINGS OF FACT

1.  The Veteran does not have a qualifying chronic 
disability that has been present to a compensable degree.  

4.  The Veteran does not otherwise have a current eye 
disability that is the result of a disease or injury in 
service. 


CONCLUSION OF LAW

A disability manifested by blurred vision was not incurred 
in or aggravated by active service and the criteria for 
service connection for a qualifying chronic disability have 
not been met.  38 U.S.C.A. §§ 1110, 1117, 5107(b) (West 2002 
& Supp. 2013); 38 C.F.R. §§ 3.303, 3.310(a), 3.317 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations imposes obligations on VA to 
provide claimants with notice and assistance.  38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 
38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide.  
38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) 
(2013).  VCAA notice, must be provided before the initial 
unfavorable adjudication by VA.  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).

The Court has also held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include:  1) veteran status; 2) existence of a 
disability; 3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) 
effective date of the disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  

In this case, the Veteran was provided with letters in 
October 2004 and March 2008 that contained all of the 
notification required by 38 C.F.R. § 3.159, as defined by 
Dingess and Pelegrini.  Although the information regarding 
the assignment of disability ratings and effective dates was 
not received until after the initial adjudication of the 
claim, this does not result in any harm to the Veteran, as 
his claim has been readjudicated since receipt of the 
notification.  Mayfield v. Nicholson, 444 F.3d 1328 (2006).  
The duty to notify has been met.  

The duty to assist has also been met.  Relevant service 
treatment records have been obtained.  Private and VA 
treatment records have also been obtained.  The Veteran was 
afforded appropriate VA examinations, and relevant opinions 
have been obtained from the examiners after a review of the 
claims folder.  The examiners did not provide detailed 
reasons for their negative nexus opinions, but the Veteran 
has not reported any in-service disease or injury or that 
acquired eye disabilities were present in service. The 
examiner's opinions are consistent with the Veteran's 
reports.  

The RO has made a formal finding that not all of the 
Veteran's service treatment records for the period from 1995 
to 1997 were available.  However, extensive service 
treatment records from this period are available, and the 
Veteran has sent photocopies of records from this period.  
The Veteran does not contend that there are records missing 
from any treatment of his eyes from this period.  As there 
is no indication that harm may result to the Veteran, the 
Board may proceed with adjudication of his claim.  Bernard 
v. Brown, 4 Vet. App. 384, 394 (1993).

The Board also finds that the action requested on remand has 
been completed.  This appeal was remanded in May 2013 in 
order to complete previously requested development.  This 
was accomplished in a May 2013 VA examination report and 
July 2013 addendum that contain all of the requested 
opinions necessary to address the Veteran's contentions.  

The United States Court of Appeals for Veterans Claims has 
interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as 
imposing two distinct duties on VA employees, including 
Board personnel, in conducting hearings: The duty to explain 
fully the issues and the duty to suggest the submission of 
evidence that may have been overlooked.  Bryant v. Shinseki, 
23 Vet. App. 488 (2010) (per curiam).  At the Veteran's 
hearing the issues were identified, including the evidence 
needed to substantiate the claim.  There was a discussion of 
possible evidence that could substantiate the claims.  

There is no indication that there is any relevant evidence 
outstanding in this claim, and the Board will proceed with 
consideration of the Veteran's appeal.

Service Connection

The Veteran contends that he developed blurred vision as the 
result of an undiagnosed illness contracted during his 
service in Southwest Asia. 

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.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires evidence 
of (1) a current disability; (2) in-service incurrence or 
aggravation of a disease or injury; and (3) a nexus between 
the claimed in-service disease or injury and the present 
disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. 
Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) 
(table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 
C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
However, this method may be used only for the chronic 
disabilities noted in 38 C.F.R. § 3.309 (2012).  Walker v. 
Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Blurred vision is 
not a disability listed in 38 C.F.R. § 3.309.

A disability which is proximately due to or the result of a 
service-connected disease or injury shall be service 
connected.  38 C.F.R. § 3.310(a).

For veterans with service in the Southwest Asia Theater of 
operations during the Persian Gulf War, service connection 
may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. 
§ 3.317.  Under that section, service connection may be 
warranted for a Persian Gulf veteran who exhibits objective 
indications of a qualifying chronic disability that became 
manifest during active military, naval or air service in the 
Southwest Asia theater of operations during the Persian Gulf 
War, or to a degree of 10 percent or more not later than not 
later than December 31, 2016.  38 C.F.R. § 3.317(a)(1)(1).

For purposes of 38 C.F.R. § 3.317, there are three types of 
qualifying chronic disabilities:  (1) an undiagnosed 
illness; (2) a medically unexplained chronic multi symptom 
illness; and (3) a diagnosed illness that the Secretary 
determines in regulations prescribed under 38 U.S.C. 1117(d) 
warrants a presumption of service-connection.

An undiagnosed illness is defined as a condition that by 
history, physical examination and laboratory tests cannot be 
attributed to a known clinical diagnosis.  In the case of 
claims based on undiagnosed illness under 38 U.S.C.A. § 
1117; 38 C.F.R. § 3.117, unlike those for "direct service 
connection," there is no requirement that there be competent 
evidence of a nexus between the claimed illness and service.  
Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, 
lay persons are competent to report objective signs of 
illness.  Id.

A medically unexplained chronic multi symptom illnesses is 
one defined by a cluster of signs or symptoms, and 
specifically includes chronic fatigue syndrome, 
fibromyalgia, and irritable bowel syndrome, as well as any 
other illness that the Secretary determines meets the 
criteria in paragraph (a)(2)(ii) of this section for a 
medically unexplained chronic multi symptom illness.

A "medically unexplained chronic multi symptom illness" 
means a diagnosed illness without conclusive pathophysiology 
or etiology, that is characterized by overlapping symptoms 
and signs and has features such as fatigue, pain, disability 
out of proportion to physical findings, and inconsistent 
demonstration of laboratory abnormalities.  Chronic 
multisymptom illnesses of partially understood etiology and 
pathophysiology will not be considered medically 
unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

There are currently no diagnosed illnesses that have been 
determined by the Secretary to warrant a presumption of 
service connection under 38 C.F.R. § 3.317(a)(2)(C)

"Objective indications of chronic disability" include both 
"signs," in the medical sense of objective evidence 
perceptible to an examining physician, and other, non-
medical indicators that are capable of independent 
verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms 
that may be manifestations of undiagnosed illness include, 
but are not limited to, the following:  (1) fatigue; (2) 
signs or symptoms involving skin; (3) headache; (4) muscle 
pain; (5) joint pain; (6) neurologic signs or symptoms; (7) 
neuropsychological signs or symptoms; (8) signs or symptoms 
involving the respiratory system (upper or lower); (9) sleep 
disturbances; (10) gastrointestinal signs or symptoms; (11) 
cardiovascular signs or symptoms; (12) abnormal weight loss; 
and (13) menstrual disorders.  38 C.F.R. § 3.317(b).  

For purposes of section 3.317, disabilities that have 
existed for six months or more and disabilities that exhibit 
intermittent episodes of improvement and worsening over a 
six-month period will be considered chronic.  The six-month 
period of chronicity will be measured from the earliest date 
on which the pertinent evidence establishes that the signs 
or symptoms of the disability first became manifest.  38 
C.F.R. § 3.317(a)(4).

 "[L]ay 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 profession."  
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. 
Cir. 2006) ("[T]he Board cannot determine that lay evidence 
lacks credibility merely because it is unaccompanied by 
contemporaneous medical evidence."

Once evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See 
Layno, supra (distinguishing between competency ("a legal 
concept determining whether testimony may be heard and 
considered") and credibility ("a factual determination going 
to the probative value of the evidence to be made after the 
evidence has been admitted").

A disorder may be service connected if the evidence of 
record, regardless of its date, shows that the veteran had a 
chronic disorder in service or during an applicable 
presumptive period, and that the veteran still has such a 
disorder.  Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); 
38 C.F.R. § 3.303(b).  

When there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter, VA shall give the benefit of the 
doubt to the claimant.  38 U.S.C.A. § 5107(b).  

The Veteran has hundreds of pages of service treatment 
records.  He was determined to be color blind in November 
1984, just days after entering active service.  The Veteran 
has not claimed service connection for this impairment and 
it is not before the Board.  The Veteran's remaining service 
treatment records are entirely negative for complaints or 
treatment of the eyes, to include blurred vision.  The 
Veteran was treated for headaches and fever in October 1985, 
but he denied visual problems.  On an undated post 
deployment questionnaire completed upon his return from 
Southwest Asia, the Veteran did not report difficulty seeing 
to be one of his symptoms, although this was an option he 
could have checked on the form.  He denied having eye 
trouble on every periodic Report of Medical History he 
completed, and every periodic examination showed that his 
eyes were normal.  The last service medical examination 
report was completed in November 1996 in conjunction with a 
Medical Evaluation Board.  The Veteran's eyes were normal.  
On the Report of Medical History that he completed at that 
time, he answered "no" to a history of eye trouble.  This 
was over five years after the Veteran's return from 
Southwest Asia.  

The post service medical records record the Veteran's 
complaints of blurred vision, beginning in the late 1990's, 
but contain few if any objective findings.  

The Veteran and his spouse both submitted statements in 
April 1998 to the effect that the Veteran would on occasion 
experience blurred vision.  

The Veteran was afforded a VA eye examination in August 
1998.  His chief complaint was of intermittent blurring 
vision in both eyes mainly noted at distance.  It seemed to 
last anywhere from minutes to an hour or two, and usually 
occurred on a daily basis.  There had been no change in 
frequency, and the Veteran reported that his had been 
happening for approximately a year to a year and a half 
following his return from the Persian Gulf.  

On examination, the Veteran's uncorrected visual acuity was 
20/20 at distance and near for each eye.  Visual fields were 
full.  Following examination, the diagnosis was normal 
ocular health in both eyes.  The examiner believed that some 
of the Veteran's symptoms were vascular in nature or 
associated with migraine headaches.  The prognosis was 
excellent with routine eye care.  

An April 2000 VA optometry note again shows that the Veteran 
complained that his eyes tend to burn off and on, and he was 
somewhat bothered by fluorescent lights.  There was 20/20 
visual acuity.  He showed mild to moderate blepharitis of 
each eye, and he was educated regarding warm soaks and lid 
scrubs.  

VA treatment records from September 2001 show that the 
Veteran was seen for a routine examination.  He complained 
of occasional itching and burning of his eye, but not very 
often.  He had a history of mild to moderate blepharitis.  
On examination, the Veteran's visual acuity at distance 
without correction was 20/20.  The remainder of the 
examination was negative.  The assessment was mild squamous 
blepharitis, and the Veteran was educated on the use of a 
warm compress and lid scrubs.  

A September 2003 VA optometry note states that the Veteran 
had no complaints about his vision but did have some 
intermittent itching and tearing which go along with his 
allergies.  Ocular history was positive for mild 
blepharitis.  On examination vision was once again 20/20, 
bilaterally.  The assessment was vitreal retinal tuft, 
asymptomatic, and mild squamous blepharitis.  

A March 2009 VA optometry note shows that the Veteran was 
seen for a comprehensive eye examination.  He did not have 
any ocular or visual complaints, and came in primarily for a 
check-up as it had been a couple of years since his last 
visit.  The Veteran said that his eyes would occasionally 
blur during allergy season, but he was otherwise happy with 
his level of vision and eye comfort.  The Veteran's ocular 
history included a vitreal retinal tuft superotemporally 
over the left eye, and a history of mild blepharitis.  

The Veteran denied any previous injuries or surgeries.  On 
examination, uncorrected visual acuity was 20/20 
bilaterally.  The assessment was vitreal retinal tuft of the 
left eye, but emmetropia.  The Veteran was educated as to 
the findings and issued warnings about presbyopia.  
Emmetropia is a state of proper correlation between the 
refractive system of the eye and the axial length of the 
eyeball, in which the rays of light entering the eye are 
bring brought to focus exactly on the retina.  See Dorland's 
Illustrated Medical Dictionary p. 509 (25th ed.1974).  

The Veteran testified at the June 2009 hearing that he had 
20/20 vision.  However, he said that if he looked at 
something it would just blur out.  He added that VA medical 
care had been unable to find any abnormalities.  See 
Transcript.  

A VA optometry note dated November 2010 reports the results 
of a comprehensive eye examination.  The Veteran had no 
ocular or visual complaints, and denied any injuries or 
surgeries to his eyes.  Uncorrected visual acuity was 20/20 
bilaterally.  The assessment was vitreal retinal tuft of the 
left eye and early presbyopia.  

The Veteran was afforded a VA eye examination in September 
2012.  The claims folder was reviewed by the examiner.  The 
Veteran reported blurred vision that seemed to vary 
throughout the day.  This had been present for many years 
but previous examinations had been inconclusive.  There had 
been no significant eye issues other than an incidental 
finding of a vitreo-retinal tuft in the peripheral of the 
left eye.  The examiner answered "yes" on the form when 
asked if the Veteran had ever had an eye condition other 
than congenital or developmental errors of refraction.  The 
diagnosis was a vitreous tuft.  On examination, a small skin 
tag on the upper left lid was present, as well as a 
peripheral corneal scar at 2 o'clock in the left eye.  
However, there was no decrease in visual acuity or other 
visual impairment, and the retinal tuft was incidental.  

In May 2013, the Veteran underwent an additional examination 
by the same examiner who conducted the September 2012 
examination.  The claims folder was reviewed, and the 
Veteran was noted to have been seen on several occasions 
with no significant eye issues other than an incidental 
finding of a vitreo-retinal tuft in the periphery of the 
left eye.  He reported blurred vision that seemed to vary 
during the day.  This had been present for years but 
previous examinations had been inconclusive and relate more 
to a developing presbyopic status.  

The Veteran's uncorrected bilateral visual acuity was 
indicated to be 20/40 or better.  There was no visual field 
defect.  At the conclusion of the examination, the examiner 
stated that there were no ocular findings to suggest a 
reason for the Veteran's complaints of intermittent blurred 
vision other than age-related presbyopic state.  

The examiner opined that the Veteran's blurred vision was 
not a manifestation of the vitreous tuft but was more likely 
than not age related presbyopia.  It was less likely than 
not that this condition began during service as it did not 
usually start until around age 40.  The examiner continued 
by opining that it was less likely than not that the corneal 
scar and vitreous tufting were related to his military 
service; the tuft was probably congenital and there was no 
evidence of an injury in service to account for the scar.  

Neither the tuft nor the corneal scar had any relation to 
any other service connected disability and were not 
aggravated by any service connected disability.  Finally, 
the blurred vision was not part of a multisystem illness as 
it was more likely than not age related ocular change.  In a 
July 2013 addendum, the examiner elaborated that the 
vitreous tuft was a residual congenital variant that had no 
relationship to any of the Veteran's service connected 
conditions.  

Analysis

There is no evidence of an acquired eye disability during 
service or of a pertinent injury or disease, other than his 
qualifying service in the Southwest Asia Theater of 
operations during the Persian Gulf War, and no competent 
medical evidence that relates any current findings to either 
active service, a service connected disability, or to an 
undiagnosed multisystem illness.  

The Veteran and his wife both reported that he Veteran 
experienced blurred vision in April 1998.  The Veteran is 
competent to report blurring, and his wife is competent to 
report what she has been told by the Veteran.  The Veteran 
told the August 1998 examiner that this had begun a year or 
so after his return from Southwest Asia.  However, this is 
contradicted by his own statements in the service treatment 
records, in which he denied having eye trouble on several 
medical histories he completed after his return from 
Southwest Asia, including histories he completed in April 
1996 and November 1996.  Examinations conducted at those 
times both showed the eyes to be normal.  The Board 
concludes that there is no competent and credible evidence 
of a disability manifested by blurred vision prior to 
discharge from service.  

Similarly, while the Veteran is competent to report that he 
experienced blurred vision after discharge from service, in 
order to warrant service connection under 38 U.S.C.A. 
§ 1117; 38 C.F.R. § 3.317. The blurred must be compensable 
disabling, or arisen while serving in the Southwest Asia 
theater of operations.  38 C.F.R. § 3.317(a)(1).  

The Veteran has reported that blurred vision was noted after 
his Southwest Asia service, and voluminous service treatment 
records show no pertinent complaints or findings.  The 
disability is not present to a compensable degree as his 
visions has been 20/40 or better and there has been no loss 
of visual fields or other compensable eye disability.  Cf. 
38 C.F.R. § 4.79 (2013) (providing criteria for flinging a 
compensable disability of the eyes).  

The initial post service finding was mild blepharitis, which 
is an infection of the eyelids and not the eye itself.  See 
Dorland's, p. 208.  This condition was first noted many 
years after service and there is no evidence, including the 
Veteran's statements, relating it to service.

The only recent findings are presbyopia, a vitreous tuft and 
a corneal scar.  Presbyopia is considered a form of 
refractive error for which service connection is precluded.  
Terry v. Principi, 340 F.3d 1378, 1381 (Fed. Cir. 2003); 
38 C.F.R. § 3.303(c) (2013).  The VA examiner opined that 
neither the vitreous tuft nor the corneal scar caused 
blurred vision, nor is there evidence linking these 
conditions to a disease or injury in service.  

He also opined that neither of these disabilities are 
related to active service or to a service connected 
disability.  Instead, the examiner opined that the cause of 
the Veteran's occasional blurry vision was age related 
presbyopia.  The tuft was said to be congenital.  This is 
consistent with the Veteran's testimony, and the service and 
post service treatment records reporting no in-service 
injury or disability.  The examiner further opined that the 
corneal scar was not related to service, as there was no 
evidence of an eye injury during service.  This is also 
consistent with the Veteran's reports and the other evidence 
of record.   The Veteran was not treated for an eye injury 
in service and he has denied a history of injury on post-
service examinations.  

The evidence is against a finding that the Veteran has a 
qualifying chronic disability, including an undiagnosed 
illness, for which service connection could be granted or an 
acquired eye disability resulting from a disease or injury 
in service.  As such, reasonable doubt does not arise and 
the claim must be denied.  38 U.S.C.A. § 5107(b). 



ORDER

Entitlement to service connection for blurred vision, to 
include as an undiagnosed illness, is denied. 



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs