Veteranclaims’s Blog

May 15, 2013

Single Judge Application; VA CLINICIAN’S GUIDE § 16.5 & “Worksheet – DIABETES MELLITUS EXAMINATION

Excerpt from decision below:
“If diabetic retinopathy were the only eye condition commonly associated with type II diabetes mellitus, teleretinal imaging alone might be a sufficient substitute for a comprehensive diabetic eye examination. However, VA has indicated that other eye conditions may result from or be related to diabetes mellitus. See VA Training Letter 00-06 (July 17, 2000)(discussing diabetes mellitus and its complications and including diabetic retinopathy, cataract, and glaucoma as common “eye complications”). The VA Clinician’s Guide states that visual impairment is a potential complication of diabetes mellitus, and the Guide’s evaluation worksheet for diabetes mellitus recommends an eye examination when signs or symptoms of eye trouble are present. See VA CLINICIAN’S GUIDE § 16.5 & “Worksheet – DIABETES MELLITUS EXAMINATION,” § B.11.
In light of the facts that (1) Mr. Courtney filed claims for service connection for an eye condition and type II diabetes mellitus almost contemporaneously (see R. at 563, 623 (both claims filed within a three-month period)), (2) he explicitly requested a “diabetic eye exam” (R. at 245), and (3) VA’s own diagnostic and training materials note a correlation between diabetes mellitus and eye conditions in addition to diabetic retinopathy, the Court finds prejudicial the Board’s failure to explain why the record did not reasonably raise the theory of service connection for an eye condition secondary to type II diabetes mellitus. See Gilbert, supra; see also Delisio v. Shinseki, 25 Vet.App.
45, 53 (2011) (observing that, “upon the filing of a claim for benefits, the Secretary must investigate
6

the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing”). Remand is necessary to permit the Board to consider this issue. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board
has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).”
============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3593
NEAL D. COURTNEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Neal D. Courtney appeals, through counsel, from a September
8, 2011, decision of the Board of Veterans’ Appeals (Board), which denied service connection for
an eye disability. 1 Record (R.) at 3-16. This appeal is timely and the Court has jurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside
the September 2011 Board decision and remand the matter for readjudication consistent with this
decision.
I. FACTS
Mr. Courtney served on active duty in the U.S. Navy from May 1969 to December 1970. R.
at 490. His entrance examination recorded distance vision of the right eye of 20/20 and of the left
1 The Board remanded for additional development the issues of service connection for (1) type II diabetes
mellitus, to include as secondary to in-service exposure to herbicides, and (2) a cardiovascular disorder, to include as
secondary to in-service exposure to herbicides or a service-connected disability. Record at 16-22. Because a remand
is not a final Board decision subject to judicial review, the Court does not have jurisdiction to consider these issues, see
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000), but will discuss type II diabetes mellitus to the extent it is
implicated in the eye disability claim.
eye of 20/50. R. at 1005. His November 1970 separation examination recorded distance vision of
the right eye of 20/20 and of the left eye of 20/30. R. at 1010. No vision or eye problems were
noted.
Treatment records from 1980, from Pechiney Plastic Packaging Company, show no right eye
problem. R. at 262, 278. The first indication of eye trouble in the record is a November 1987 private
treatment record from the Wolfe Clinic that diagnosed “[t]raumatic retinal detachment” in the right
eye, which “ha[d] 2 been there for some time.”3 R. at 626. Mr. Courtney informed the examiner that
he had been poked in the eye with a stick as a child. Id. That same month, he underwent scleral
buckling surgery, a procedure to repair the detachment. R. at 626-27. The results were positive until
October 1990, when Mr. Courtney reported being transferred to another job because of poor visual
acuity. R. at 627-28. Examination revealed “some definite loss of foveal reflex”4 in the posterior
retina, which, if organic, was due to “a combination of his previous retinal detachment and perhaps
a scleral buckle.”5 R. at 629. The examiner prescribed bifocals and noted that “[t]here doesn’t
appear to be anything in the [right eye] that additional treatment will help.” Id.
In that month Mr. Courtney filed a claim with his life insurance carrier for “accidental
dismemberment benefits,” stating that a childhood accident resulted in a detached retina and that the
1987 reattachment surgery did not restore sight to his right eye. R. at 546. Eye examinations around
this time diagnose him with poor vision, poor depth perception, and poor visual fields in his right
2 Medical documents throughout the record use the abbreviations “OD” (oculus dexter) and “OS” (oculus
sinister) to refer, respectively, to the right eye and the left eye. See JABLONSKI’S DICTIONARY OF MEDICAL ACRONYMS
& ABBREVIATIONS 351, 357 (6th ed. 2009).
3 “Retinal detachment is a separation of the light-sensitive membrane in the back of the eye (the retina) from
its supporting layers.” Retinal detachment, MEDLINEPLUS, U.S. National Library of Medicine, National Institutes of
Health, http://www.nlm.nih.gov/medlineplus/ency/article/001027.htm (last visited May 2, 2013). “When the retina
becomes detached, bleeding from area blood vessels may cloud the inside of the eye, which is normally filled with
vitreous fluid. Central vision becomes severely affected if the macula, the part of the retina responsible for fine vision,
becomes detached.” Id.
4 The “fovea” is “a tiny pit, about 1 degree wide, in the center of the macula”; the fovea “is the area of most
acute vision.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 739 (32d ed. 2012) [hereinafter DORLAND’S]. “Foveal
reflex” is the reaction of the fovea to light during an eye examination. See id. at 1612.
5 “Scleral buckling” is “a technique for repair of detachment of the retina, in which indentations or infoldings
of the sclera are made over the tears in the retina so as to promote adherence of the retina to the choroid.” DORLAND’S
at 257.
2
eye. R. at 542-44; see R. at 630 (March 1993 examination diagnosing “[p]oor visual result . . .
following successful reattachment of the retina”).
In January 2004, Mr. Courtney sought service connection for an eye condition. In his
submission he stated:
I had eye surgery in 1985 at the Wolfe Clinic for detached retina and fluid behind the
eye and still have trouble with it. When I asked about eye care in 1971 when I was
discharged from service, I asked about eye care, and was told at that time there was
no compensation for it at that time.[6] My records from the Wolfe Clinic are
enclosed.
R. at 623. Two months later, he sought service connection for recently diagnosed type II diabetes
mellitus, stating: “I was on a mine sweeper, [the U.S.S.] Advanced from 1969-1970 and I was in
Vietnam for 11 months, and we swept the Cambodian border.” R. at 563; see R. at 565. In a
November 2004 rating decision, the VA regional office (RO) denied the claim for an eye condition
(which it referred to as a detached retina), finding no nexus between it and service; the RO also
denied service connection for type II diabetes mellitus. R. at 313-20. The veteran filed a Notice of
Disagreement as to these decisions (R. at 311), the RO continued its denial (R. at 260-79), and, in
September 2006, Mr. Courtney appealed to the Board (R. at 251-53).
An October 2006 VA treatment note records that Mr. Courtney requested a “diabetic eye
exam.” R. at 245. He underwent “diabetic teleretinal imaging” for diabetic retinopathy on
November 7, 2008.7 R. at 205. In December 2008, Mr. Courtney was informed that the results of
the eye examination were normal—”[d]iabetes without retinopathy”—and that he should return for
a reexamination in one year. R. at 187-88. In a July 2010 informal hearing presentation, Mr.
Courtney’s veterans service organization representative noted the veteran’s January 2004 statement
that he had inquired about eye care at the time of discharge from service, suggested this constituted
an assertion of “an in-service complaint” relating to his current eye condition, and requested remand
for a VA etiology examination and opinion. R. at 118-19.
6 Although the veteran mentions that he was discharged from service in 1971, the Court observes that Mr.
Courtney underwent his separation examination in November 1970 and was discharged in December 1970. R. at 490,
1010.
7 “Retinopathy” is “a syndrome characterized by blind spots in the visual fields.” DORLAND’S at 1634. “Diabetic
retinopathy” is “retinal changes associated with diabetes mellitus.” Id.
3
In August 2010, the Board remanded for further development all four claims then on appeal,
including service connection for type II diabetes mellitus and for an eye condition, ordering that VA
obtain Social Security Administration (SSA) records and perform a PTSD examination. R. at 107-
14. The Board did not prescribe additional development for Mr. Courtney’s eye condition, and he
continued to argue that he was entitled to a VA medical examination and opinion for his eye
condition. R. at 25-26, 54. In September 2010, the SSA Records Center advised VA that it was
unable to locate any medical records for Mr. Courtney. R. at 92. The RO issued a Supplemental
Statement of the Case continuing its denial of service connection for an eye condition. R. at 33-47.
Before the Board, the veteran repeated the arguments from the July 2010 informal hearing
presentation. R. at 25-26.
The Board issued the decision currently on appeal on September 8, 2011. The Board
remanded for further development the issue of service connection for type II diabetes mellitus,
finding that the record was not clear whether Mr. Courtney’s service might entitle him to a
presumption of Agent Orange exposure. R. at 16-22. However, the Board denied service connection
for an eye disability. Because there was no credible evidence of an in-service event, injury, or
disease giving rise to his eye condition, the Board found that Mr. Courtney had not demonstrated
entitlement to a VA medical examination or opinion under McLendon v. Nicholson, 20 Vet.App. 79
(2006), or, ultimately, service connection. R. at 7-16. This appeal followed.
II. ANALYSIS
In his opening brief, Mr. Courtney contends that the Board erred in three respects. First, it
failed to ensure VA satisfied its duty to assist by obtaining relevant records, to wit, the results of the
November 7, 2008, teleretinal imaging. Appellant’s Brief (Br.) at 9-12. Second, the Board failed
to consider whether the record reasonably raised the issue of service connection of the eye condition
secondary to type II diabetes mellitus. Id. at 13-16. And, finally, Mr. Courtney argues that the Board
erred in finding not credible his January 2004 statement that he had inquired about eye care when
he was being discharged from service, which he asserts is evidence of an in-service disease or injury
relating to his current eye condition. Id. at 16-18.
The Secretary, however, points out that teleretinal imaging results are of record (Secretary’s
4
Br. at 5-6), and Mr. Courtney has acknowledged this oversight (Reply Br. at 1). Inasmuch as the
absence of these results form the sole basis of the veteran’s argument regarding the duty to assist, the
Court deems his acknowledgment to be a withdrawal of this argument.
The Court will now address his remaining contentions. The Court reviews the Board’s factual
determinations under the “clearly erroneous” standard set forth in 38 U.S.C. § 7261(a)(4). See
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992). “A factual finding ‘is “clearly erroneous” when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.'” Id. (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948))). On issues of material fact and law presented on the record,
the Board is required to support its findings with a statement of reasons or bases that enables a
claimant to understand the precise basis for the Board’s decision and facilitates review in this Court.
See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
A. Service Connection for an Eye Condition Secondary to Type II Diabetes Mellitus
The veteran contends that the Board failed to discuss entitlement to service connection for
an eye condition secondary to type II diabetes mellitus, thereby rendering its statement of reasons
or bases inadequate. Appellant’s Br. at 13-16. As previously noted, see supra note 1, the claim for
service connection for type II diabetes mellitus was remanded and is undergoing additional
development at VA. See R. at 16-22. Secondary service connection is available when a claimant’s
disability is either (1) due to or the result of a service-connected disability, or (2) aggravated by a
service-connected disability. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc); 38 C.F.R.
§ 3.310 (2012). The Board is required to consider all theories of entitlement to VA benefits that are
either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App.
545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Moreover,
“VA has a duty to fully and sympathetically develop a . . . claim to its optimum” by “determin[ing]
all potential claims raised by the evidence[ and] applying all relevant laws and regulations.” Moody
v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (internal quotation marks omitted).
Mr. Courtney contends that his October 2006 request for a “diabetic eye exam” (R. at 245)
reasonably raised service connection for an eye condition secondary to type II diabetes mellitus. See
Appellant’s Br. at 14-15. The Secretary correctly notes that the results of the diabetic teleretinal
5
imaging are of record. Because the teleretinal imaging report indicated that the veteran does not
have diabetic retinopathy, the Secretary argues that “the mere fact that [Mr. Courtney] requested and
was provided with a diabetic retinopathy examination in no way reasonably raises a theory of
entitlement based on a secondary relationship between his claimed eye disability and his [diabetes
mellitus].” Secretary’s Br. at 8. However, the Court agrees with Mr. Courtney that the Board’s
statement of reasons or bases is deficient in this regard.
Mr. Courtney’s October 2006 request was for a “diabetic eye exam.” R. at 245. On the
evidence in the record before the Court, VA provided the veteran with teleretinal imaging and not
a diabetic eye examination. R. at 188. Teleretinal imaging focuses on detecting diabetic retinopathy
and, according to VA, does not involve a comprehensive examination of the eye. See id. (VA
ophthalmology consult form with a specific notation stating: “Digital retinal imaging has been shown
to be an effective method of screening for diabetic retinopathy, but cannot substitute for a comprehensive eye exam.”). If diabetic retinopathy were the only eye condition commonly associated with type II diabetes mellitus, teleretinal imaging alone might be a sufficient substitute for a comprehensive diabetic eye examination. However, VA has indicated that other eye conditions may result from or be related to diabetes mellitus. See VA Training Letter 00-06 (July 17, 2000)(discussing diabetes mellitus and its complications and including diabetic retinopathy, cataract, and glaucoma as common “eye complications”). The VA Clinician’s Guide states that visual impairment is a potential complication of diabetes mellitus, and the Guide’s evaluation worksheet for diabetes mellitus recommends an eye examination when signs or symptoms of eye trouble are present. See VA CLINICIAN’S GUIDE § 16.5 & “Worksheet – DIABETES MELLITUS EXAMINATION,” § B.11.
In light of the facts that (1) Mr. Courtney filed claims for service connection for an eye condition and type II diabetes mellitus almost contemporaneously (see R. at 563, 623 (both claims filed within a three-month period)), (2) he explicitly requested a “diabetic eye exam” (R. at 245), and (3) VA’s own diagnostic and training materials note a correlation between diabetes mellitus and eye conditions in addition to diabetic retinopathy, the Court finds prejudicial the Board’s failure to explain why the record did not reasonably raise the theory of service connection for an eye condition secondary to type II diabetes mellitus. See Gilbert, supra; see also Delisio v. Shinseki, 25 Vet.App.
45, 53 (2011) (observing that, “upon the filing of a claim for benefits, the Secretary must investigate
6

the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing”). Remand is necessary to permit the Board to consider this issue. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board
has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).

B. Credibility of Mr. Courtney’s January 2004 Statement
Mr. Courtney submitted a statement to VA in January 2004 in which he said: “When I asked
about eye care in 1971 when I was discharged from service, I asked about eye care, and was told at
that time there was no compensation for it at that time.” R. at 623. The Board acknowledged that
Mr. Courtney argued that this statement represented a complaint of an eye problem at the time of
discharge. However, the Board concluded that the statement itself does not support that the veteran described an eye problem at discharge. The Board determined, in addition, that even if it interpreted the veteran’s statement as a description of an eye problem at discharge, such a statement would not
be credible. R. at 14. Mr. Courtney argues that the Board did not adequately explain its reasons for discounting the statement’s credibility, but does not contest the Board’s interpretation of the statement. He argues that if the statement is considered credible it would provide evidence of an inservice
eye disease or disability necessary to obtain a VA medical examination and opinion. Appellant’s Br. at 16-18. The Court concludes, however, that the Board provided a plausible and sufficient explanation for its credibility determination and relied on permissible considerations in determining that the facts impugn the veteran’s credibility.
Although in making its credibility assessment the Board noted the absence of any service treatment records corroborating Mr. Courtney’s assertion that he experienced eye trouble while serving in the Navy (R. at 14), the Board mustered other factors to support its conclusion that the veteran’s January 2004 statement was not credible. The Board found that several years had elapsed between the veteran’s discharge from service in 1970 and his first complaints of eye problems. R. at 14-15 (citing Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)); see R. at 262, 278 (finding that a 1980 treatment record from Pechiney Plastic Packaging Company showed no right eye problem), 626 (1987 Wolfe Clinic treatment note constituting first documented eye trouble in the record). The
7

Board also observed that, between 1987 and 2004, Mr. Courtney had consistently informed eye care specialists that his eye problem was likely caused by childhood trauma, and did not mention an inservice eye injury or that any eye problem had occurred during service. R. at 11-12, 14-15; see R. at 118, 542, 543, 547, 626. These findings are not clearly erroneous, see Hersey, supra, and together
they form a permissible basis for the Board to determine that Mr. Courtney’s January 2004 statement that he asserted a complaint of an eye problem at the time of his 1970 discharge from the Navy was not credible. See 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.”); id. (holding that the Board may discount lay evidence as a
result of conflicting statements); Caluza v. Brown, 7 Vet.App. 498, 511 (1995) (same); see also Maxson, 230 F.3d at 1333 (stating that the Board may consider the absence of medical complaints or treatment over prolonged periods).
Thus, contrary to Mr. Courtney’s assertion (Appellant’s Br. at 17-18), the absence of contemporaneous service medical records was not the sole reason for finding his claim that he asserted eye trouble upon separation from service not to be credible. To the extent the veteran argues that the Board failed to offer adequate reasons or bases for its credibility determination (id. at 18),
the Court disagrees. See Gilbert, 1 Vet.App. at 57. Further, the Board explained why, in the absence of credible evidence establishing that an event, injury, or disease occurred in service, VA was not required to provide a medical examination or opinion as part of the duty to assist. R. at 8-10 (citing, inter alia, McLendon, 20 Vet.App. at 81). Mr. Courtney has not challenged the Board’s McLendon
analysis, and the Court expresses no view on it.
Finally, the Court notes that the Board found that “[t]he [v]eteran has made no other
statement [that] could potentially describe an in-service eye injury or disease, and the evidence of
record does not describe such an event.” R. at 15. Mr. Courtney does not challenge this finding, and
upon review of the record the Court cannot say that it is clearly erroneous. See Hersey, supra.

III. CONCLUSION
Upon consideration of the foregoing, the September 8, 2011, Board decision is SET ASIDE,
and the matter is REMANDED for readjudication consistent with this decision.
8

Mr. Courtney is free to submit additional evidence and argument on remand, in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112
(requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).
DATED: May 13, 2013
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
9

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