Citation Nr: 21010038 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-23 715 DATE: February 23, 2021 ORDER Entitlement to service connection for a bilateral eye disability is denied. FINDING OF FACT An eye disability, to include dry eye syndrome, meibomian gland dysfunction and chalazion, is not the result of an undiagnosed illness or unexplained multisymptom illness, was not manifest in service or within one year of service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty for training from August 1976 to February 1977 and on active duty from November 1990 to May 1991, including service in the Southwest Asia theater of operations from January 3, 1991, to April 23, 1991. The Veteran had additional service in the Army Reserve. Entitlement to service connection for a bilateral eye disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present case, the Veteran has contended that he has a bilateral eye disability that is a manifestation of one or more undiagnosed illnesses resulting from his service in the Southwest Asia theater of operations during the Persian Gulf War or otherwise due to his active service. In order to obtain a grant of service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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 December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). 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. § 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. § 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. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding functional gastrointestinal diseases), as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi symptom illness. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. See 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (amending 38 C.F.R. § 3.317(c) to allow for presumptive service connection for nine infectious diseases.) As none of the enumerated diseases are at issue in this case, the Board has omitted listing the diseases or discussing them. Section 3.317 explicitly acknowledges that a claimant’s “signs or symptoms” need not be shown by medical evidence; however, the regulation does specifically require some “objective indications” of disability. See 38 C.F.R. § 3.317(a). “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). Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d); 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (reordering this part of the regulation to 38 C.F.R. § 3.317(e)). The Veteran’s military records document that he served in Southwest Asia during the pertinent time period. Therefore, the above-described provisions possibly apply to his case. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. § 1110 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran’s service and the disability. The Veteran’s service treatment records include no complaints, treatment, or diagnosis of an eye disability. An April 1991 Report of Medical History prior to separation from service included the Veteran’s denial of a history of eye trouble. A contemporaneous Report of Medical Examination included a normal eye examination. His distant vision was 20/20 in both eyes. A November 1991 Report of Medical Examination also included a normal eye examination, with distant vision of 20/20 bilaterally. In a contemporaneous Report of Medical History the Veteran denied a history of eye trouble. In September 2010, the Veteran denied any recent visual problems, eye pain, or visual disturbances. In July 2011, the Veteran denied any visual changes, eye pain, or discharge. A June 2015 VA treatment record noted that the Veteran had a history of decreased near vision, bilateral tearing, and an 8-month history of longstanding right eye chalazion. There also was a diagnosis of meibomian gland dysfunction. The Veteran was afforded a VA eye examination in August 2017. The examiner diagnosed vitreous degeneration of the left eye. Following examination, the examiner concluded that the vitreous degeneration was a condition with a clear and specific etiology and diagnosis. The examiner concluded that it was less likely than not that the vitreous degeneration due to an event / exposure in the military because it was age-related, benign, and occurred in the general population. Goldman visual field testing was normal in both eyes. There was no visual disturbance. His vitreal changes showed no retinal issues and visual acuity was 20/20 best corrected. A March 2020 VA contract eye examination report is of record. The examiner noted a diagnosis of bilateral dry eye syndrome. There was a bilateral visual disturbance with onset in 2019 to 2020. The Veteran experienced bilateral watering and blurry vision. Examination results showed visual acuity of 20/25 is each eye, which was normal. There was no visual field defect. Dry eyes were a normal consequence of aging and not related to any event in service. Dry eyes could cause occasional blurring that cleared when the person would blink or use artificial tears. The examiner indicated that the Veteran’s disease had a clear and specific etiology and diagnosis. In addition, dry eyes were not related to a specific exposure event. Also, dry eyes were a normal consequence of aging and could cause occasional blurring that cleared when the person blinked or used artificial tears. A December 2020 VA medical addendum opinion concluded that it was not at least as likely as not that the Veteran’s meibomian gland dysfunction and/or chalazion of the right eye. The rationale was that meibomian gland dysfunction was a common aging problem and chalazion was typically secondary to meibomian gland dysfunction, as well as being an acute event. The Board notes that eye symptoms are not specifically listed among the possible manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness for purposes of presumptive service connection. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The Veteran has been diagnosed with dry eye syndrome, meibomian gland dysfunction and chalazion. Therefore, the Veteran’s eye problems are attributed to known clinical diagnoses. See 38 C.F.R. § 3.317(a)(1)(ii). As such, to the extent the associated symptoms are explained, the associated disabilities are not “undiagnosed” or “medically unexplained” for purposes of applying the Persian Gulf presumption. 38 C.F.R. § 3.317(a)(2)(i) and (ii). In summary, presumptive service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 is not permitted here for his diagnosed eye disabilities or any eye symptoms. With respect to granting service connection for the claim on a direct basis, the above medical opinions specifically found that the dry eye syndrome and meibomian gland dysfunction were due to the natural aging process and the chalazion was secondary to the meibomian gland dysfunction and not related to any aspect of service, to include service in Southwest Asia. A rationale for the opinions was provided and the Board finds this opinion the most probative evidence of record. The Board has considered the Veteran’s contentions that his eye problems are the result of service in Southwest Asia. The Board acknowledges that the Veteran is competent the report associated symptoms, but due to the complexity of linking many of his specific eye symptoms to service in Southwest Asia the Board affords the medical opinions of record considerably greater probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds the Veteran’s contentions particularly problematic given the clear absence of a continuity of eye symptoms from service. Accordingly, the Board finds that the preponderance of the evidence is against service connection for a bilateral eye disability, so there is no reasonable doubt to resolve in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.