Citation Nr: 20008380 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-25 713 DATE: January 31, 2020 ORDER Entitlement to service connection for chronic dry eyes syndrome, complications of photorefractive keratectomy (PRK) surgery is denied. FINDINGS OF FACT 1. The Veteran’s refractive error, myopia, of the bilateral eyes are congenital or developmental defects and are not diseases or injuries within the meaning of applicable legislation for disability compensation purposes, and there is no medical indication of additional disability due to superimposed disease or injury. 2. The Veteran’s chronic dry eyes syndrome is not manifested by visual impairment, incapacitating episodes, or a disorder of the lacrimal apparatus. 3. The preponderance of the evidence is against finding that the Veteran’s chronic dry eyes syndrome, complications of PRK surgery is related to disease or injury incurred in or aggravated during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic dry eyes syndrome, complications of PRK surgery have not been met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306(b)(1), 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the rating decision on appeal was issued in February 2016. In August 2019, the Veteran filed elected to participate in the modernized review system. 38 C.F.R. § 19.2(d). The Veteran had active service from May 2010 to September 2015. The Veteran selected the Higher-Level Review Lane when he opted into the Appeals Modernization Act (AMA) review system. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The threshold question in any claim seeking service connection is whether there is a current disability at any point during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pursuant to 38 C.F.R. § 3.306(b)(1), the usual effects of medical and surgical treatment in service, having the effect of ameliorating a disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. Entitlement to service connection for chronic dry eyes syndrome, complications of PRK surgery. The Veteran asserts that he is entitled to service connection for chronic dry eyes syndrome because the condition began during active service. The Veteran asserts that he never had chronic dry eyes syndrome until after he underwent PRK surgery in January 2009 during active service. However, the Board finds that the probative evidence of record shows that the Veteran’s chronic dry eyes syndrome is the result of an elective surgery to correct a refractive error of the eye, myopia. Vision refractive errors, such as myopia, are due to anomalies in the shape and conformation of the eye structures, generally of congenital or development origin. Refractive errors are generally stationary or change slowly. See https://medlineplus.gov/refractiveerrors.html. Service connection will be granted when there are unusual developments, such as choroidal degeneration, retinal hemorrhage or detachment, or rapid increase of myopia of 2 diopters in a year, producing uncorrectable impairment of vision. Otherwise, service connection is prohibited for refractive errors in vision as congenital or developmental defects. See 38 C.F.R. § 4.9. The Veteran’s myopia was not aggravated by any disease or injury during active service. The record evidences that the Veteran had myopia prior to his service entry. Hence, the presumption of soundness on service entry does not apply here. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disordered noted at entrance into service, and only such conditions as are recorded in examination reports are to be considered as noted). In this matter, June 2006 service records (SRs) indicate that the Veteran requested “a waiver” for admission because his vision impairment required him to wear contact lenses and keep eyeglasses with him. During the June 2006 examination, the Veteran denied any eye disorders or eye trouble. There were no complaints or findings of dry eye syndrome. The Veteran had not undergone corrective vision surgery prior to service. The Veteran’s November 2008 and January 2009 service treatment records (STRs) show that prior to his PRK surgery the Veteran attended two preoperative examinations regarding the potential side effects of PRK surgery. A November 2008 briefing report indicates the optometrist educated the Veteran and discussed his diagnosis of myopia, along with medications/treatments, alternatives to PRK surgery and the surgery’s potential side effects. In January 2009, the Veteran underwent a second preoperative examination for his upcoming elective PRK surgery. During this examination, the Veteran reported years of “blurred vision” and myopia. The Veteran indicated that the elective PRK surgery would be of great benefit to his “lifestyle”, because he would no longer be depended upon corrective lenses to see at a distance. Again, the optometrist discussed the Veteran’s diagnosis, medications/treatments, alternatives to PRK surgery and the potential side effects of this elective procedure. The Veteran indicated a full understanding of the optometrist’s discussion on his eye condition and the side effects of the PRK surgery. In January 2009, the Veteran underwent PRK surgery, without any reported complications. In February 2009, the Veteran reported no changes in his vision or complaints regarding his eye symptoms. In March 2009, the Veteran underwent a postoperative examination for his PRK surgery; he had 20/20 vision in both of his eyes. In April 2009, four months postoperative, the Veteran reported “no dryness” in his eyes. In May 2009, the Veteran reported of itchy watery eyes and was treated for allergic rhinitis; however, his pupils were normal, and he made no report of eye dryness. In July 2009, the Veteran reported no eye symptoms or vision problems. In a July 2009 “Certificate of Good Health” a VA examiner reviewed the Veteran’s medical records and opined that the Veteran does not currently have or previously had a significant medical condition. On August 2009, the Veteran underwent a post operation eye examination and he reported no dry eyes or blurred vision. The Veteran was released without limitations. In November 2010, the Veteran was assessed as “normal” upon a physical examination. In October 2011, the Veteran indicated that he takes no medication and has a history of sinusitis from seasonal allergies. The Veteran also reported that since his January 2009 PRK surgery he no longer needs contact lenses for his vision. In September 2014, the Veteran underwent an eye examination and complained of pain and “very dry eyes” upon the awakening and opening his eyes. The Veteran reported that, two days prior to the eye examination, he felt like part of his left eye “ripped off” upon awakening and his pain was rated at 7 out of 10; he also complained of blurry vision when driving at night. However, during the September 2014 eye examination the Veteran explained that his current pain level had greatly improved; he rated his pain at 2 out of 10. The Veteran was released without limitation and advised to follow up with the optometry clinic in 3 days or sooner if he experienced problems. In June 2015, an optometrist diagnosed the Veteran with chronic allergic conjunctivitis which can result from seasonal allergies, mold, pollen and dust. See https://www.ncbi.nlm.nih.gov/pubmed/22827184. The optometrist found no trauma to the Veteran’s eyes, prescribed gel tears—twice daily, and educated the Veteran on UV protection and lifestyle changes for eye dryness. During the Veteran’s July 2015 separation examination, he reported wearing contact lenses and eye glasses from 2002 to 2010. Additionally, he claimed that he underwent PRK surgery in January 2010. The Veteran reported that since his PRK surgery he has had dry eyes in the morning and the evening which causes his eye lids to stick to his eyes. He explained that opening his eyes can be extremely painful. The Veteran asserts that he treats his dry eyes with over the counter (OTC) eye drops to relieve his eye discomfort. In August 2019, the Veteran further asserts that his chronic dry eyes syndrome significantly increased from October 2012 to September 2015, during the three years that he was stationed on the USS Newport News (SSN-750). He explains that he would not have filed a claim for disability benefits if his dry eyes condition remained at the same level of discomfort he experienced from January 2009 to September 2012, prior to his stationing at the SSN-750. He also claims that his chronic dry eyes syndrome has persisted since he separated from service. See August 2019 NOD. The Board recognizes that the Veteran is competent to report his symptoms of chronic dry eye syndrome during service and continuous irritation since. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has fully considered the Veteran’s complaints and symptoms related to his chronic dry eye syndrome. However, the Board also notes a few contradictions in the Veteran’s contentions asserted in his disability claim and the evidence of record—including the Veteran’s statements to his treating physicians and VA examiners. The record of evidence is inconsistent with several of the Veteran’s assertions. First, the Veteran underwent his elective PRK surgery in January 2009, not in January 2010 as he represents in his July 2015 separation examination. Second, in March 2009 the Veteran’s vision in both eyes was normal and he was released without limitations. Third, for more than five years, until September 2014, the Veteran evidenced no complaints of extreme pain and chronic dry eyes syndrome. The Veteran was stationed at the SSN-750 from October 2012 to September 2014 without any complaints of chronic dry eye syndrome, extreme pain or medical reports indicating these symptoms. Most recently, the Veteran asserts that the oxygen levels and exposure to common chemicals onboard the SSN-750 caused his eye pain to significantly increase and exacerbated his dry eyes syndrome. Notably, during a September 2014 medical examination, the Veteran reported that his eye pain and chronic dry eyes had significantly decreased in pain level to a rating of 2 out 10. Furthermore, in a July 2015 separation examination, the Veteran indicates that he has no overall concerns or questions with his health. Thus, the record of evidence does not support all of the Veteran’s assertions. The Veteran seeks service connection for his chronic dry eyes syndrome because he believes his eye condition was incurred in service; however, the evidence does not demonstrate that he underwent trauma or incapacitating periods due to eye disease. While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality, there is no evidence that such occurred in this case. See 38 C.F.R. §§ 3.303 (c), 4.9; McNeely v. Principi, 3 Vet. App. 357, 364 (1992). In June 2019, the Veteran was afforded an in-person VA examination to render a medical opinion on his chronic dry eyes syndrome. The VA examiner noted that the Veteran’s eye condition was not evidenced until a three month postoperative visit. The VA examiner found the Veteran’s chronic dry eyes syndrome, complications of PRK surgery, “…is/are at least as likely as not (50 percent or greater probability) incurred in or caused by the in service elective PRK surgery.” The VA examiner noted that PRK surgery is “known to be a cause of dry eyes syndrome.” The VA examiner determined that the Veteran’s condition does not necessitate followup care with his primary care provider. Also, in June 2019, a VA examiner completed a Medical Opinion Disability Benefits Questionnaire (DBQ) following a thorough review of the Veteran’s claims file and an in-person examination of the Veteran. The VA examiner diagnosed the Veteran with Dry Eye Syndrome evidenced in both eyes, which onset in March 2009, two months following his elective PRK surgery. The VA examiner indicated that the Veteran’s Dry Eyes Syndrome does not result in severe irregular astigmatism or double vision. The VA examiner indicated that the Veteran treats his Dry Eyes Syndrome with OTC artificial tear drops. The VA examiner noted the condition had “gotten better” and there was no need for followup care with the Veteran’s primary care provider. Of greater significance, the VA examiner found that the Veteran’s Dry Eyes Syndrome did not incapacitate him during the past twelve months or impact his ability to work. After a careful review all of the evidence, the Board finds that the Veteran’s chronic dry eyes syndrome does not warrant a disability finding for VA purposes. See 38 C.F.R. § 3.303(c). While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality, there is no allegation or evidence that such occurred in this case. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Therefore, the preponderance of the evidence is against the claim for service connection for chronic dry eyes syndrome, complications of PRK surgery. Accordingly, the claim is denied. There is no doubt to be resolved. 38 U.S.C. § 5107(b). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.