Citation Nr: 18141699 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-15 258A DATE: October 11, 2018 ORDER Service connection for left foot neuropathy due to cold weather exposure is denied. Service connection for right foot neuropathy due to cold weather exposure is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is denied. FINDINGS OF FACT 1. The Veteran’s left foot neuropathy did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s right foot neuropathy did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 3. The Veteran does not meet the requirements for SMC under 38 U.S.C. § 1114. Therefore, the claim for entitlement to SMC based on aid and attendance/housebound status is moot. CONCLUSIONS OF LAW 1. The preponderance of the evidence shows that right foot neuropathy is not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The preponderance of the evidence shows that right foot neuropathy is not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for entitlement to SMC based on aid and attendance/housebound status have not been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1942 to October 1945, and from January 23 to June 25, 1951. He died in October 2016. The appellant, his surviving spouse, has been substituted for the Veteran for the purpose of processing his claim to completion. See U.S.C. § 5121A. The issues are on appeal from an April 2015 rating decision. Service Connection Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. 3.303. Certain chronic disabilities, including other organic diseases of the nervous system (such as neuropathy), are presumed to have been incurred in or aggravated by service if the disability manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a) (2017). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a) (2017). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board of Veterans’ Appeals (Board) is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for left foot and right foot neuropathy due to cold weather exposure The appellant contends that the Veteran developed neuropathy in his left and right foot after experiencing exposure to extreme cold while serving in the Navy. The Veteran’s service treatment records are silent as to any cold weather incident in service, with the exception of an October 1945 statement alleging that such an incident took place in January and February 1943. The Board notes that the Veteran separated in October 1945, and that his nervous system was found normal at discharge. In December 2003, the Veteran underwent an electromyography which showed a fairly moderately severe axonal motor sensory neuropathy. This is the first reference to a diagnosis in the Veteran’s medical records. In a November 2015 opinion by Dr. J.S., the Veteran’s private neurologist, he stated that the Veteran’s neuropathy was most likely caused by or a result of his military service. As rationale, Dr. J.S. wrote that freezing could have caused peripheral nerve damage, as extreme testing had shown no other cause. The Board finds this opinion as speculative as it is phrased in terms of probability, and thus cannot be afforded probative weight on the question of etiology. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a medical nexus). In a December 2015 opinion by Dr. D.F., another of the Veteran’s private physicians, he opined that the Veteran’s Parkinson’s disease and peripheral neuropathy were most likely caused by or a result of his military service. In this opinion, Dr. D.F. did not provide any rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, this opinion also cannot be afforded any probative weight In April 2016, the Veteran was afforded a VA examination for cold injury residuals. Here, the examiner opined that it was less likely than not that the Veteran’s neuropathy was due to cold exposure in service. She stated that there was no evidence of a cold injury in the Veteran’s service treatment records, and that as there was no documented medical evidence of chronic neuropathy, there was no medical evidence to support a link between cold exposure and neuropathy. This opinion also cannot be afforded probative weight as it was based on inaccurate facts and insufficient rationale. The examiner failed to address the October 1943 cold injury report, and provided no rationale for her statement that there was no medical evidence to support a link between cold exposure and neuropathy. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). In December 2017, Dr. D.F. submitted an addendum to his December 2015 opinion. He opined that cold and freezing weather exposure could have caused peripheral nerve damage, as extreme testing could find no other cause. For the same reasons stated above regarding Dr. J.F.’s November 2015 opinion, the Board finds this opinion as speculative as it is phrased in terms of probability, and thus cannot be afforded probative weight on the question of etiology. In August 2018, an addendum VA opinion was obtained. The examiner conceded cold exposure. He also affirmed the opinion that it was less likely than not that the Veteran’s neuropathy was due to cold exposure in service. Addressing the October 1943 discharge notation, the examiner stated that the phrase “colds” was ambiguous, and although could be an appropriate reference to an upper respiratory infection, “colds” was an implausible abbreviation for a documented cold weather injury. Further, the examiner stated that the Veteran was diagnosed with Parkinson’s disease and idiopathic peripheral neuropathy, and that to state that the idiopathic peripheral neuropathy was related to an in-service cold injury was nothing more than speculative. The examiner referenced the etiology opinions from Dr. J.S. and Dr. D.F., and opined that their statements fell under the umbrella of speculative opinions, and both were inadequate to justify affirmative opinions. Based on the above, the Board finds that the weight of the medical evidence is against a finding that the Veteran’s left and right foot peripheral neuropathy was caused or aggravated by service, including exposure to cold weather. The Veteran’s service treatment records and post-separation medical records do not contain any opinions on etiology with the exception of the opinions already discussed. The etiology opinions from Dr. J.S. and Dr. D.F. cannot be afforded probative weight. Using the words “could have” falls prey to speculation as it is a probability term. Further, the rationale that the etiology of the Veteran’s peripheral neuropathy must be cold weather exposure because “extreme testing” was performed and no other etiology was found, does not satisfy the legal standard of preponderance of the evidence. The only probative etiology opinion was from the August 2018 VA examiner. He discussed the October 1945 notation to “colds,” and clarified that although commonly used for reference to an upper respiratory infection, it is not used to describe a cold weather injury. The examiner also remarked that any such opinion linking peripheral neuropathy to a cold weather injury was speculative, as Dr. J.S. and Dr. D.F. had done. Therefore, the Board finds the most probative evidence is against finding a nexus between the Veteran’s cold weather exposure and his diagnosed left and right foot peripheral neuropathy. Turning to the one-year presumption, the earliest record of a peripheral neuropathy diagnosis for the left and right foot was in December 2003, which is decades from his separation from active duty, and well outside the one-year legal presumption for certain chronic diseases such as neuropathy. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). As noted above, the evidence shows that the Veteran’s symptoms began in 2003, again, decades after his separation from service. In light of the above, the medical evidence is against the claim for service connection based on continuity of symptomatology and the appeal is denied on this basis. The Board acknowledges the Veteran’s multiple and consistent statements which detailed his in-service exposure to cold weather and subsequent treatments for such; and the appellant’s testimony during an August 2017 hearing about what the Veteran had told her regarding his in-service cold exposure. However, the Board finds that the medical evidence has more probative weight in showing a nexus or link between his diagnoses and in-service exposure to cold weather. In sum, the claims of entitlement to service connections for left and right foot peripheral neuropathy must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status The Court has noted that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. In this regard, such statute states that, if a veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more, he may be paid at the housebound rate. Thus, under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In Bradley, the Court held that SMC might be warranted when a separate award of a TDIU rating, predicated on a single disability (perhaps not ratable at the schedular 100 percent level), is considered together with another disability separately rated at 60 percent or more. See Buie at 251; see also Bradley at 293. Here, the Veteran was not service-connected for any disability prior to his passing, and as his claims of entitlement for service connections for left and right foot peripheral neuropathy are denied, the claim for entitlement to SMC is moot as he does not meet the necessary requirements under 38 U.S.C. § 1114. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel