Citation Nr: 21040881 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-03 665 DATE: July 7, 2021 ORDER Entitlement to service connection for an eye disability, to include idiopathic orbital inflammation and dacryoadenitis, is granted. FINDINGS OF FACT 1. The Veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's idiopathic orbital inflammation and dacryoadenitis is a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. 3. The Veteran's qualifying chronic eye disability, which did not clearly and unmistakably preexist service, became manifest during active military service in the Southwest Asia theater of operations. CONCLUSION OF LAW The criteria for service connection for an eye disability, to include idiopathic orbital inflammation and dacryoadenitis, are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1996 to February 1997 and from August 2005 to November 2006, to include active service in the Southwest Asia theater of operations from November 2005 to October 2006. The Veteran had additional service in the National Guard and Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied, in relevant part, the Veteran's claim for service connection for an eye disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the December 2018 Board decision with respect to the denial of service connection for an eye disability, and remanded the matter to the Board for compliance with the JMPR instructions. The Court deemed the issues of service connection for bilateral hearing loss and tinnitus to be abandoned and noted that it lacked jurisdiction over service connection for a psychiatric disorder. The Parties agreed that remand was warranted because "the Board erred when it provided an inadequate statement of reasons or bases" for failing to "discuss whether [the Veteran's] idiopathic ocular inflammation, also diagnosed as dacryoadenitis, was an undiagnosed illness under 38 C.F.R. § 3.317(a)(2)." JMPR at 2. Specifically, the Parties agreed that the Board must discuss the Veteran's reports that his condition "existed and persisted since his separation from service;" whether his eye condition was an undiagnosed illness associated with service in the Persian Gulf; and whether additional development was necessary, especially in light of a "doctor's opinion that the condition may be related to Persian Gulf weather." Id. at 3. After the November 2019 Order granting the JMPR, the Board remanded the matter for further development in June 2020 and January 2021. Examinations and medical opinions were obtained in October 2020, January 2021, April 2021, and June 2021. The Veteran asserts that his eye disability began during his deployment to the Southwest Asia theater of operations. See December 2020 Correspondence; January 2016 VA Form 9. The Board agrees. A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). In this case, there is a question as to whether the Veteran's eye disability preexisted his military service. In this regard, the Veteran endorsed a history of eye trouble on the August 2005 Report of Medical History (ROMH) and an August 2005 service treatment record (STR) indicates the Veteran reported a left eye burning sensation. The August 2005 Report of Medical Examination (ROME) conducted just prior to the Veteran's final period of active service is absent of any notations of eye disabilities. Therefore, with respect to an eye disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id.; see also Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v Shinski, 22 Vet. App. 390, 396 (2009). Although the August 2005 ROMH and STR suggest that eye problems may have preexisted the Veteran's final period of active service, this evidence does not clearly and unmistakably establish that a diagnosed eye disability preexisted service. In this regard, the Board notes that the August 2005 ROMH indicates the Veteran endorsed a history of "eye disorder or trouble," but contains no additional information specifying the nature of that history or whether an eye disability had been diagnosed. The August 2005 STR indicates the Veteran complained of burning in his left eye, but this is an isolated complaint and does not establish an actual disability. Furthermore, the August 2005 ROMH and STR indicate possible eye symptoms based solely on the Veteran's own subjective reporting, which is not sufficient to rebut the presumption of soundness in this case, given the more contemporaneous normal entrance examination conducted in August 2005. Thus, there is no evidence clearly and unmistakably establishing that the Veteran had an eye disability preexisting service, and the presumption of soundness is not rebutted in this case. Accordingly, the claim becomes one for service connection. See Wagner, 370 F.3d 1089 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that the claim is converted into a normal claim for service connection). Because the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established under 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. 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 thereafter. 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. § 3.317, 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 (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); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), 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 multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "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 or medically unexplained chronic multi-symptom 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). Here, the Veteran has active duty service in the Southwest Asia theater of operations during the Persian Gulf War. See November 2006 DD Form 214; 38 C.F.R. § 3.2, 3.317(e)(2). The Veteran has also been diagnosed with idiopathic orbital inflammation and dacryoadenitis, both conditions affecting the eyes. See September 2015 private treatment note; December 2014 C&P eye examination; July 2014 private treatment note; March 2014 private medical opinion. Additionally, evidence of record also establishes that the Veteran's symptoms became manifest during his active service in the Southwest Asia theater of operations. 38 C.F.R. § 3.317(a)(i). In this regard, a March 2021 buddy statement written by a fellow servicemember who served alongside the Veteran reports that he observed the Veteran develop right eye swelling and redness in Southwest Asia. A December 2020 statement written by the Veteran indicates that he first developed right eye swelling and other eye problems on active duty in Southwest Asia. See also January 2016 VA Form 9 (reporting dryness and swelling in the eyes beginning in Southwest Asia). In addition, October and November 2020 C&P eye examinations indicate the Veteran's eye dryness and swelling had their onset around the time he served in Southwest Asia. Although there are no STRs corroborating these in-service reports, the March 2021 buddy statement and January 2016 VA Form 9 credibly and reasonably explain that the Veteran was unable to see a doctor while deployed. The record contains several C&P examinations and nexus opinions addressing the nature and etiology of the Veteran's claimed eye disability. Although all the nexus opinions are negative, a positive nexus opinion is not needed to establish presumptive service connection based on Persian Gulf War illness and 38 C.F.R. § 3.317. Here, a positive nexus opinion is not needed because the January 2021 examiner stated the Veteran's claimed eye disability was a "diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology." The Board also emphasizes that the Veteran's condition has been diagnosed as idiopathic orbital inflammation, which the June 2021 VA examiner noted was a "benign, noninfective inflammatory condition of the orbit without any identifiable local or systemic cause." (Emphasis added). Moreover, the Board observes that idiopathic means "of unknown cause or spontaneous origin." See Dorland's Illustrated Medical Dictionary at 912 (32nd ed. 2012). A September 2015 private treatment note states that the Veteran's other eye disorder, dacryoadenitis, is a rare disorder without a known etiology, but is "possibly" related to weather in the Persian Gulf. Furthermore, C&P examinations have failed to attribute the Veteran's eye disorders to a known etiology. The October 2020 examination, and April 2021 and June 2021 addendum opinions, stated that the Veteran does not have idiopathic orbital inflammation and dacryoadenitis, but rather characterized his condition as dry eye syndrome. These opinions, however, are non-probative to the extent they fail to address evidence that the Veteran's idiopathic orbital inflammation and dacryoadenitis manifest in active and inactive periods, and the fact that dry eyes are a symptom of the claimed disabilities. See May 2020 VA treatment note (stating dry eyes improve with eye drops); August 2019 VA ophthalmology note (stating swelling resolves later in the day); January 2016 VA treatment note (prescribing medication to be taken as needed for eye inflammation); August 2015 VA treatment note (describing orbital swelling as intermittent); December 2014 C&P eye examination (stating the condition was quiescent, i.e., inactive or dormant, and referring to episodes of swelling); March 2014 private medical opinion (describing the degree of eye swelling as variable). In addition, the same examiner appeared to revise his opinion because in January 2021 he opined that the claimed eye disorders constituted a "diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology." Thus, the Board affords more probative value to the finding that idiopathic orbital inflammation and dacryoadenitis are representative of a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology than it does to the diagnosis of dry eye syndrome, as the former includes dryness as a symptom and allow for an award of service connection under the pertinent regulations. In sum, evidence of record establishes that the Veteran served on active duty in the Southwest Asia theater of operations during the Persian Gulf War. Lay and medical evidence also establishes that the Veteran manifested objective indications of an eye disorder, specifically redness, dryness, and swelling, while on active duty in Southwest Asia. Lastly, evidence of record establishes that the Veteran's eye disorders are a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, and the record lacks probative evidence relating his eye disorders to any known etiology. Thus, all elements of presumptive service connection are met under 38 C.F.R. § 3.317, and service connection for idiopathic orbital inflammation and dacryoadenitis is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.