Citation Nr: 22016907 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-40 819 DATE: March 23, 2022 REMANDED Entitlement to service connection for residuals of cold weather injuries is remanded. Entitlement to service connection for leiomyosarcoma of the right hip or right hip cancer is remanded. Entitlement to special monthly compensation (SMC) based on housebound criteria or the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1955 to January 1958. The Veteran died in December 2014; the appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In September 2020, the appellant testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board then remanded this matter in July 2021. 1. Entitlement to service connection for residuals of cold weather injuries is remanded. During the October 2020 hearing, the appellant stated that she observed that the Veteran had problems with residuals of frostbite. The Veteran had problems with one of his feet and had gotten frostbite while in service. The Veteran's service treatment records appear to have been destroyed by fire. See July 2014 VA 21-3101 Request for Information. In situations where the service records are incomplete, lost, or presumed destroyed through no fault of the veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In December 2021, a VA medical opinion was obtained. The VA examiner opined that it was less likely than not that the Veteran's claimed residuals of cold weather injuries were related to his military service. The claimed condition, residuals of cold injury, such as frostbite, any foot condition or peripheral vascular disease, was less likely than not incurred in or caused by the claimed in-service symptom during service. Though the Veteran's service treatment records were destroyed, if cold injury occurred that caused residual symptoms, this would also be noted in post service treatment records as well. There were no post service treatment records found that supported that the Veteran had residual conditions/symptoms related to a cold injury. A nexus could not be sustained. The Board finds the December 2021 VA medical opinion to be inadequate. While the Veteran's service treatment records are missing because they were destroyed by fire, the VA examiner did not consider the appellant's lay statements during the October 2020 hearing that that she observed that the Veteran had problems with residuals of frostbite. The Veteran had problems with one of his feet and had gotten frostbite while in service. A negative opinion may not rest solely on the absence of evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The absence of evidence in a veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection). Thus, a remand is warranted to take the appellant's lay statements into consideration. 2. Entitlement to service connection for leiomyosarcoma of the right hip or right hip cancer is remanded. The Veteran is seeking service connection for a right hip disability secondary to his residuals of frostbite. This issue is thus inextricably intertwined with the issue of service connection for residuals of cold weather injuries that is being remanded. Thus, this issue should be remanded as well. 3. Entitlement to SMC based on housebound criteria or the need for aid and attendance is remanded. Finally, because a decision on the issues of service connection for residuals of cold weather injuries and service connection for right hip cancer could significantly impact a decision on the issue of SMC, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand of the claim for SMC is required. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's claimed residuals of cold weather injuries. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's residuals of cold weather injuries, such as frostbite, any foot disorder, deep vein thrombosis, and/or peripheral vascular disease, are related to his military service? The VA examiner must consider the appellant's lay statements during the October 2020 hearing that she observed that the Veteran had problems with residuals of frostbite. The Veteran had problems with one of his feet and had gotten frostbite while in service. (b.) All opinions must be supported by a sufficient rationale. A negative opinion cannot be based solely on the absence of medical evidence. The Veteran's service treatment records were destroyed by fire. Service treatment records are unavailable for review. For the purposes of the opinion, the examiner should assume the Veteran's statements about his service injuries are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition(s). If there is a medical basis to support or doubt the history, the examiner should provide a fully reasoned explanation. The examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record. However, the examiner's opinion must not contain any determinations regarding the credibility of any statements made by the Veteran or on behalf of the Veteran. 2. If it is determined that the Veteran's residuals of cold weather injuries are related to his military service (service connection being warranted), then the RO must obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's right hip disability. A copy of this remand and claims file must be reviewed. The VA examiner must consider the following: (a.) Is it at least as likely as not that the Veteran's right hip cancer or any type of identified hip disorder is caused by, proximately due to, and/or aggravated (worsened beyond its natural progression) by residuals of his cold weather injuries, such as frostbite, any foot disorder, deep vein thrombosis, and/or peripheral vascular disease? (b.) All opinions must be supported by a sufficient rationale. A negative opinion cannot be based solely on the absence of medical evidence. The Veteran's service treatment records were destroyed by fire. Service treatment records are unavailable for review. For the purposes of the opinion, the examiner should assume the Veteran's statements about his service injuries are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition(s). If there is a medical basis to support or doubt the history, the examiner should provide a fully reasoned explanation. The examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record. However, the examiner's opinion must not contain any determinations regarding the credibility of any statements made by the Veteran or on behalf of the Veteran. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate all of the appellant's claims. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the appellant. After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.