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Board’s glaucoma denial contained legal error

Board’s glaucoma denial contained legal error


The Veteran served on active duty in the United States Air Force from November of 1963 to April of 1968, including service in the Republic of Vietnam during the Vietnam War.  VA awarded him service connection for diabetes mellitus on account of his presumed exposure to herbicides while in Vietnam in a January 2004 rating decision.  The Veteran filed a claim for service connection for glaucoma in January of 2008.  In April of 2014, the Board of Veterans’ Appeals remanded the claim for a new examination in order to determine if the Veteran’s diabetes mellitus caused or aggravated his glaucoma.

Veteran undergoes examination

In August of 2014, the Veteran underwent a VA examination in which the examiner diagnosed him with primary open angle glaucoma and found that the diabetes neither caused nor aggravated the glaucoma. As a rationale for both, the examiner stated: “[p]opulation-based studies fail to consistently show an association between diabetes and POAG.” (emphasis added).  In May of 2016, the Board issued another decision in which it denied the claim.

CCK appeals to the Court of Appeals for Veterans Claims

CCK successfully appealed the May 2016 decision to the CAVC.  The Board relied on the August 2014 examination in making its decision.  CCK argued that the examination was inadequate.

CAVC agrees with CCK’s arguments

On appeal, the CAVC agreed that the examiner’s rationale about the association between diabetes and glaucoma only spoke to the question of causation and not to the issue of aggravation.  The Court also agreed that the examiner’s noting of other factors the Veteran had for developing glaucoma only related to causation and not to aggravation.  The Court held that the Board erred in relying on this examination because the examiner failed to provide any rationale concerning aggravation.  Furthermore, the Board neglected to explain how it could base its decision upon this examination despite the lack of an adequate rationale.  Accordingly, the Court vacated the Board’s decision and remanded the claim.  It ordered the Board to either seek clarification of the 2014 examination or seek a new examination.

Category: Court Wins


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