Citation Nr: 1633735 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 12-11 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to service-connected anxiety disorder with bipolar disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service from November 2001 to March 2005, to include service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) following a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in part, denied to reopen the claim for service connection for an eye disability. In a May 2014 decision, the Board, inter alia, reopened the claim and remanded for further development. The Veteran appealed the portions of the Board's May 2014 decision that represented a final claim. The parties agreed to a Joint Motion for Remand (JMR) in March 2015, and that same month the Court of Appeals for Veterans Claims (Court) remanded the claims for compliance with instructions in the JMR. In July 2015, the Board addressed the matters remanded by the Court and once again remanded the claim for service connection for an eye disability for an addendum opinion. In August 2015, the VA examiner provided an addendum VA opinion, and in September 2015, the RO issued a supplemental statement of the case denying service connection for an eye disability. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT Resolving all doubt in favor of the Veteran, his eye disability, diagnosed as myokymia, had its onset in service. CONCLUSION OF LAW The criteria for establishing service connection for an eye disability, diagnosed as myokymia, have been met. 38 U.S.C.A. §§ 1110, 1117, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Given the favorable action taken below, the Board will not discuss further whether those duties have been accomplished. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. While service connection is warranted where 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), service connection may also be granted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Because the Veteran is a Persian Gulf veteran, having verified service in the Southwest Asia Theatre of Operations, service connection may also be established under 38 U.S.C.A. § 1117 (West 2014) and 38 C.F.R. § 3.317 (2015). Under those provisions, 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. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(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 multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 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. § 3.317, 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. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5). For the purposes of service connection for undiagnosed illnesses, signs or symptoms which may be manifestations of said undiagnosed illness include, but are not limited to: (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). In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[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 professional." 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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). 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")). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has an eye disability for which he should be service-connected. The evidence of record comprises the Veteran's service treatment records (STRs); VA treatment records; VA examinations in December 2006, October 2010, March 2011, July 2011, September 2014 with an addendum opinion in August 2015, and a March 2016 VA opinion; and the Veteran's statements. In the Veteran's STRs, his September 2001 enlistment report of medical examination noted that his eyes were normal and that he had 20/20 vision acuity. See VBMS 03/30/2005 STR Medical, 101. In September 2004, medical records revealed that the Veteran got into a fight and was punched in the face several times. He reported trauma to both eyes, which included bruising in the left eye and redness in the right eye with difficulty opening it. His eyes were watery, and he had blurry vision as well as floaters. Visions acuity tests were normal with 20/20 vision in both eyes and he passed his color vision test. See id. at 25. At his December 2006 VA examination, the Veteran complained of blurry vision in both eyes and that he saw colored spots in his eyes, for which he reported he had been given eye drops while in service. He also stated that he had something in his eye while in service and that it was flushed out with eye drops. He contended that he had sharp eye pain about twice a month, which went away after a moment, but he could not associate it with any specific time or task. He denied diplopia, peripheral vision loss, previous eye surgeries, and concurrent care for any other eye disease. The Veteran's visual acuity was better than 20/20 in both eyes, and there was a small scar seen inferiorly in the right eye. There were no other abnormalities. The examiner opined that the Veteran's statements of something being removed from his eye while in-service likely referred to a corneal foreign body, "which would be consistent with the focal scar seen inferiorly in the right eye." The examiner stated that the scar was inferior to the visual axis and was unlikely to cause any visual complaints. See VBMS 12/12/2006 VA Examination. VA treatment records in December 2008 noted that the Veteran's eyes were clear with no icterus. The pupils were equally reactive to light and there was no nystagmus. See VBMS 02/01/2011 Medical Treatment Records Government Facility, 11. In March 2009, the Veteran denied blurry or double vision. See VBMS 02/02/2011 Medical Treatment Records Government Facility, 1. In May 2009, the Veteran claimed that he had frequent headaches. The physician noted that he had denied any sudden changes or blurry vision in his last examination and that he had no history of glaucoma or cataracts. The physician observed that his conjunctiva was pink, his sclera was not yellow, that his extraocular movements were intact, and that his pupils were equal, round, and reactive to light. See VBMS 02/01/2011 Medical Treatment Records Government Facility, 28. At his October 2010 VA examination, the Veteran reported that he had noticed black specks on the outside of his pupils after his September 2004 in-service injury, and that the skin around his ocular orbits was black and blue. He contended that he had mental issues that stemmed from the injury, to include not being able to sleep at night because he was afraid that his eye was going to deteriorate or get smaller, and being afraid that his eyesight would become blurry. He claimed that his right eye would twitch, and denied any coffee or sugar intake. He reported that his vision was occasionally blurry, but that it depended on his level of focus. He also claimed that he had headaches around the eye and temple, more so in the back of his head, which he attributed to his in-service injury. The examiner found no residuals or scarring from the in-service eye injury, and that a previous report of corneal scar in the right eye was not evident during the examination. He explained that the black specks the Veteran referred to were normal pigmentation of the eye, and that there was no etiology for the pain around the eyes. The examiner opined that the Veteran's myokymia (eyelid twitch) was more likely a result of lack of sleep, but he did not provide a rationale for this finding. See VBMS 10/15/210 VA Examination. In November 2010, the Veteran denied any problems with his eyes, ears, nose, or throat. See VBMS 02/01/2011 Medical Treatment Records Government Facility, 37. At his March 2011 Gulf War Guidelines Examination and his July 2011 General Medical Examination, the examiners noted that the Veteran's eyes were normal on examination, and that he displayed no symptoms in the right or left eyes. His visual acuity was 20/20, and he did not report any history of vision loss. See VBMS 03/03/2011 Gulf War Guidelines Examination; 07/19/2011 General Medical Examination. In May 2014, the Veteran denied any problems with his eyes, ears, nose, or throat. See VBMS 09/15/2014 Medical Treatment Records Government Facility, 29. At his September 2014 VA examination, the Veteran reported that he experienced throbbing in his eyes, with severity ranging from one to seven out of ten, and with concurrent episodes of eye twitching. He stated that the eye twitching episodes had been happening for the last five to seven years at irregular frequencies. The examiner found that his vision acuity was 20/40 or better and that he had trace racial melanosis and nasal and temporal pinguecula bilaterally. All other findings were normal. The examiner found that there was no ocular pathology to account for the Veteran's episodes of eye pain and that there were no residuals from the Veteran's in-service injury. Further, the examiner stated that there was no eyelid myokymia on examination. He opined that due to the "lack of evidence of residuals of trauma, the [Veteran's] claimed eye condition/symptoms [was] not caused by or a result of his service related event/injury/eye disability." See VBMS 09/02/2014 C&P Exam. In the August 2015 addendum opinion, the examiner referred to the Veteran's statements that he had "episodes of throbbing eye pain with eyelid twitching in both eyes for the last [five to seven years]" as well as during the December 2006 and October 2010 VA examinations. He stated that the Veteran did not have any residuals from his in-service eye injuries, and that none of the VA examiners had observed eyelid myokymia during any of his examinations. The examiner reported that the Veteran was examined for potential causes of ocular pain, "of which there were none," but that it was possible that the Veteran was having "a headache with a periorbital focus." The examiner noted that the October 2010 VA examination reported "a strong history of insomnia which is the most likely cause for the eyelid myokymia." He reviewed medical articles, including one entitled "Eyelid Myokymia," which reported that "the cause [for myokymia] is unknown but may be associated with stress, fatigue, and excessive caffeine or alcohol intake." The examiner opined that "given the lack of evidence of residuals of trauma and lack of literature pointing to this as a cause for myokymia, the Veteran's claimed eye condition/symptoms is not caused by or a result of his service related event/injury/eye disability." See VBMS 08/18/2015 C&P Exam. In the March 2016 VA opinion, the examiner noted that the Veteran's eye symptoms could be attributed to eyelid myokymia. She noted that all other aspects of the Veteran's ocular examinations had been normal except for his corneal scar in December 2006, which resolved. She explained that eyelid myokymia is a "benign, self-limited disorder likely related to recent stress, fatigue, caffeine or alcohol intake and [was] not related to trauma." She stated that after a thorough search, there was no medical literature that associated eyelid myokymia with trauma. She noted that this disorder was not known to be due to environmental exposures from Southwest Asia, and that it was unlikely that it was causally related to an event or circumstance of his service, to include environmental exposures. She also opined that the disorder was not a result of or aggravated by a service-connected disability since the Veteran had complained of eye pain and eyelid myokymia since his episode of blunt trauma to both eyes, but had had multiple normal eye examinations in the last 10 years. Upon consideration of the above evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an eyelid disability is related to a service-connected disability. As a preliminary matter, the Board notes that the Veteran's eye disability is not an undiagnosed illness. Indeed, the March 2016 VA opinion specifically stated that the eye disability had a known diagnosis of myokymia, and that it was not known to be due to environmental exposures from Southwest Asia. As such, the Veteran is not entitled to a presumption under 38 C.F.R. § 3.317. The Veteran reports the onset of the disability in service. In addition, service connection is in effect for anxiety disorder with bipolar disorder, which includes symptoms of chronic sleep impairment and near-continuous panic attacks. The Veteran also reported that he remained variably anxious every day and that he experienced muscle tension. As noted above, the October 2010 and August 2015 VA examiners found that the Veteran's myokymia was more likely the result of the Veteran's chronic sleep impairment, which itself has been attributed to the Veteran's service-connected anxiety disorder with bipolar disorder. In light of this evidence and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for an eye disability, diagnosed as myokymia, have been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an eye disability, diagnosed as myokymia, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs