Veteranclaims’s Blog

February 20, 2020

Single Judge Application; acoustic trauma from mortar blasts . . . —he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service; 38 U.S.C. § 1154(b); combat presumption requires review of relevant evidence using a three-step, sequential analysis; Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996);

Filed under: Uncategorized — Tags: — veteranclaims @ 2:32 pm

Excerpt from decision below:

” Pursuant to 38 U.S.C. § 1154(b):
In the case of any veteran who engaged in combat with the enemy in active service
with a military, naval, or air organization of the United States during a period of
war, campaign, or expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence of service incurrence
or aggravation of such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such service, and, to that end,
shall resolve every reasonable doubt in favor of the veteran. Service-connection of
such injury or disease may be rebutted by clear and convincing evidence to the
contrary. The reasons for granting or denying service-connection in each case shall
be recorded in full.
38 U.S.C. § 1154(b). Application of the combat presumption requires review of relevant evidence using a three-step, sequential analysis. See Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).
This analysis, which essentially tracks section 1154(b), is as follows:
As the first step, it must be determined whether the veteran has proffered
“satisfactory lay or other evidence of service incurrence or aggravation of such
injury or disease.” 38 U.S.C. § 1154(b). As the second step, it must be determined
whether the proffered evidence is “consistent with the circumstances, conditions,
or hardships of such service.” Id. The statute provides that if these two inquiries are
met, the Secretary “shall accept” the veteran’s evidence as “sufficient proof of
service-connection,” even if no official record of such incurrence exists. Id. Thus,
if a veteran satisfies both of these inquiries mandated by the statute, a factual
presumption arises that the alleged injury or disease is service-connected.
Id. at 393 (quoting 38 U.S.C. § 1154(b)).
A combat veteran may invoke section 1154(b) to show both that an event that allegedly
caused disability occurred in service and also that the claimed disability itself was incurred in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (“[A]lthough the record contained evidence of the cause of [the appellant’s] disability—acoustic trauma from mortar blasts . . . —he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.”). However, “[s]ection 1154(b) has been interpreted to reduce the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease[, but] it is not . . . equivalent to a statutory
presumption that the claimed condition is service connected.” Dalton v. Nicholson, 21 Vet.App. 23, 37 (2007) (citing Collette, 82 F.3d at 392).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0739
DORIS W. BLAIR, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Doris W. Blair, surviving spouse of veteran Sidney L.
Blair, through counsel appeals an October 11, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to disability compensation for bilateral foot neuropathy due to cold weather exposure and special monthly compensation (SMC) based on the need for aid and attendance/housebound status. Record (R.) at 3-14. The appellant did not raise any argument in her opening brief concerning the Board’s denial of entitlement to SMC.1 Therefore, the Court finds
that she has abandoned her appeal of this issue and will dismiss the appeal as to the abandoned issue. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). This appeal is timely,
and the Court has jurisdiction to review the Board’s decision 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 following reasons, the Court will vacate the Board’s decision denying entitlement
1 The Court declines to address arguments raised for the first time in her reply brief. See Carbino v. Gober, 10 Vet.App. 507, 511 (1997) (declining to review argument first raised in appellant’s reply brief), aff’d sub nom. Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (“[I]mproper or late presentation of an issue or argument . . .
ordinarily should not be considered.”); see also Untalan v. Nicholson, 20 Vet.App. 467, 471 (2006); Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990).
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to disability compensation for bilateral foot neuropathy and remand the matter for further
proceedings consistent with this decision.
I. BACKGROUND
The veteran served on active duty in the U.S. Navy from September 1942 to October 1945
and from January to June 1951. R. at 5, 346, 678. His separation examination report from 1945
reveals a clinically normal nervous system and his service personnel records reflect that he
received the European-African-Middle Eastern Area Service Ribbon and one engagement star “for
participating in the invasion of the French Coast [on] June 6, 1944.” R. at 514, 610. A VA Form
3102, Request for Navy Information, dated in December 1945 reflects under the caption “Alleged
Disease or Injury” that the veteran received treatment at a Naval hospital in 1943 for “[c]olds.”
R. at 781.
The veteran underwent an electromyography in December 2003, which revealed
neuropathy. R. at 296. In October 2014, he filed a claim for disability benefits for neuropathy in
both feet due to frostbite exposure; a VA regional office (RO) denied the claim in 2015. R. at
364-68, 696-98. He filed a Notice of Disagreement, in which he asserted that he was treated for a
cold weather injury during service. R. at 324-25. He also submitted a statement in July 2015 that,
while sailing from Maine to Boston, the ship he was on was caught “in an ice storm and [he,] being
the signalman aboard[,] was positioned on the flying bridge (outside) . . . . [and his] feet and hands
froze.” R. at 322. In November 2015, his private neurologist submitted an opinion indicating that
his neuropathy was most likely caused by or a result of his military service. R. at 71. The private
neurologist reasoned that “[f]reezing could have caused peripheral nerve damage” and that
“[e]xtreme tests were done to find other causes of neuropathy and none were found.” Id. The
following month, another private physician opined that the veteran’s Parkinson’s disease and
peripheral neuropathy were most likely caused by or a result of his military service. R. at 286.
The veteran underwent a VA examination in April 2016 for cold injury residuals. R. at
255-63. The examiner opined that it was less likely than not that the veteran’s neuropathy was due
to service. R. at 261. The examiner noted that the veteran had been treated for “colds” in service
and reasoned that there was no documented medical evidence of chronic neuropathy caused by
“colds.” Id. The RO issued a Statement of the Case taking the private and VA opinions into
account, and the veteran perfected his appeal. R. at 194, 197-241.
3
After the veteran died in October 2016, the substituted appellant testified at a Board
hearing. R. at 82-104, 174, 176. The member of the Board noted the veteran’s service during World
War II and that she would consider whether being exposed to cold conditions was “consistent with
the rigors of [his] service.” R. at 96. The Board subsequently remanded for another VA
examination because the April 2016 VA examiner’s opinion was “based on inaccurate facts and
does not contain an adequate rationale.” R. at 76. The same month, the private physician submitted
an addendum to his December 2015 opinion, again opining that “[c]old and freezing weather could
have caused peripheral nerve damage,” noting that extreme testing was done and no other causes
of neuropathy could be found, and concluding that “nerve damage due to freezing causing
peripheral neuropathy in both feet is more than 50% military service related.” R. at 69.
In August 2018, the April 2016 VA examiner provided an addendum opinion. R. at 21-22.
The examiner concluded that it was less likely than not that the veteran’s cold exposure caused
peripheral neuropathy. R. at 22. The examiner acknowledged that the veteran was exposed to cold
but noted that “cold injuries are not documented in available medical [service treatment
records].” Id. Further, the examiner explained that the notation “colds” in the December 1945 VA
Form 3102 was ambiguous and an implausible abbreviation for a cold weather injury. Id. He also
referenced the private opinions and opined that it would be speculative to conclude that a link
exists between the veteran’s neuropathy and cold weather exposure. Id.
In October 2018, the Board issued its decision denying entitlement to service connection
for the veteran’s peripheral neuropathy and concluding that the request for SMC was moot. R. at
3-14. The Board found the November 2015 and December 2017 private opinions speculative and
afforded them no probative value; the December 2015 private opinion and April 2016 VA opinion
lacking rationale and afforded them no probative value; and the August 2018 addendum VA
opinion the only probative etiology opinion of record. Id. This appeal followed.
II. ANALYSIS
The appellant argues that reversal is warranted because the Board improperly discounted
the private opinions. Appellant’s Brief (Br.) at 7-17. Specifically, she argues that “[n]one of the
medical evidence of record on the issue of etiology is against the claim,” and the Board clearly
erred in finding that the evidence preponderates against the claim. Id. at 7, 8-14. In the alternative,
she argues that remand is warranted for the Board to provide an adequate statement of reasons or
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bases regarding the applicability of the “combat presumption” pursuant to 38 U.S.C. § 1154(b). Id.
at 7-8, 15-17. The Secretary concedes that a remand is warranted for the Board to address the
combat presumption, but asserts that reversal is not warranted. Secretary’s Br. at 5-17.
A. Motion for Oral Argument
On December 20, 2019, the appellant filed a motion for oral argument, asserting that this
appeal warrants a precedential decision to clarify an issue, namely whether a medical examiner’s
use of the words “can” and “could” when opining on a causal connection renders the opinion
speculative. Motion at 2. Generally, oral argument will be held when the Court determines that it
will “materially assist” the Court in resolving the issue before it. Beaty v. Brown, 6 Vet.App. 532,
539 (1994); see Winslow v. Brown, 8 Vet.App. 469, 471 (1996); Mason v. Brown, 8 Vet.App. 44,
59 (1995). As discussed below, the Court concludes that remand is necessary for the Board to
make necessary factual findings in the first instance and, because those findings may impact the
Board’s assessment of the medical evidence, it is not necessary to discuss the issue raised by the
appellant; therefore, oral argument would not materially assist the Court. See U.S. VET. APP. R.
34(b) (“Oral argument normally is not granted on . . . matters being decided by a single Judge.”).
Accordingly, the Court will deny the appellant’s motion.
B. Service Connection for Neuropathy
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and
(3) a nexus between the claimed in-service injury or disease and the current disability. See
38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2019). Whether
the record establishes entitlement to service connection is a finding of fact, which the Court
reviews under the “clearly erroneous” standard of review. See Russo v. Brown, 9 Vet.App. 46, 50
(1996). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence,
“is left with the definite and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
As with any material issue of fact or law, the Board must provide a statement of the reasons or
bases for its determination “adequate to enable a claimant to understand the precise basis for the
5
Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
Pursuant to 38 U.S.C. § 1154(b):
In the case of any veteran who engaged in combat with the enemy in active service
with a military, naval, or air organization of the United States during a period of
war, campaign, or expedition, the Secretary shall accept as sufficient proof of
service-connection of any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence of service incurrence
or aggravation of such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such service, and, to that end,
shall resolve every reasonable doubt in favor of the veteran. Service-connection of
such injury or disease may be rebutted by clear and convincing evidence to the
contrary. The reasons for granting or denying service-connection in each case shall
be recorded in full.
38 U.S.C. § 1154(b). Application of the combat presumption requires review of relevant evidence using a three-step, sequential analysis. See Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).
This analysis, which essentially tracks section 1154(b), is as follows:
As the first step, it must be determined whether the veteran has proffered
“satisfactory lay or other evidence of service incurrence or aggravation of such
injury or disease.” 38 U.S.C. § 1154(b). As the second step, it must be determined
whether the proffered evidence is “consistent with the circumstances, conditions,
or hardships of such service.” Id. The statute provides that if these two inquiries are
met, the Secretary “shall accept” the veteran’s evidence as “sufficient proof of
service-connection,” even if no official record of such incurrence exists. Id. Thus,
if a veteran satisfies both of these inquiries mandated by the statute, a factual
presumption arises that the alleged injury or disease is service-connected.
Id. at 393 (quoting 38 U.S.C. § 1154(b)).
A combat veteran may invoke section 1154(b) to show both that an event that allegedly caused disability occurred in service and also that the claimed disability itself was incurred in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (“[A]lthough the record contained evidence of the cause of [the appellant’s] disability—acoustic trauma from mortar blasts . . . —he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.”). However, “[s]ection 1154(b) has been interpreted to reduce the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease[, but] it is not . . . equivalent to a statutory presumption that the claimed condition is service connected.” Dalton v. Nicholson, 21 Vet.App. 23, 37 (2007) (citing Collette, 82 F.3d at 392).

6
Here, the Board initially noted that the veteran’s service treatment records do not reflect a
cold weather incident other than the 1945 form “alleging that such an incident took place” and that
the veteran’s nervous system was normal at discharge. R. at 7. The Board then relied on the August
2018 addendum VA opinion, in which the physician found it ambiguous whether the indication of
“colds” in the 1945 VA Form 3102 was referring to freezing conditions and found speculative any
opinion linking the veteran’s neuropathy to a cold weather injury. R. at 9; see R. at 781. Further,
the Board acknowledged the veteran’s statements about an in-service cold weather injury and
subsequent treatment and the appellant’s hearing testimony from August 2017, but concluded that
“the medical evidence has more probative weight in showing a nexus or link between [the
veteran’s] diagnoses and in-service exposure to cold.” R. at 10. The Board determined that there
was no nexus between his neuropathy and service, the condition did not manifest during a
presumptive period, and there was no continuity of symptomatology. R. at 10.
The Court will accept the Secretary’s concession that the Board erred by failing to consider
whether to apply the combat presumption given the veteran’s Service Ribbon and engagement star
“for participating in the invasion of the French Coast [on] June [6,] 1944.” R. at 514; see Secretary’s
Br. at 16 (citing R. at 514-16). Specifically, he concedes that “the Board never discussed whether
the [v]eteran served in combat or whether he was entitled to the combat presumption in assessing
whether his neuropathy began in service.” Secretary’s Br. at 16. Therefore, as discussed below, the
Court concludes that remand is warranted. See Allday, 7 Vet.App. at 527; see also Tucker v. West,
11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate statement of
reasons or bases for its determinations, . . . a remand is the appropriate remedy.”).
Although the appellant agrees that a remand for the reasons identified by the Secretary
would be appropriate, Reply Br. at 5, she alternatively argues that reversal is warranted because,
among other reasons, “it is . . . undisputed that the [v]eteran endured extreme cold exposure during
his service in World War II” and “[n]one of the evidence of record on the issue of etiology is
against the claim,” Appellant’s Br. at 7, 10 (citing R. at 24, 243, 323). As to in-service incurrence,
the Board “acknowledge[d] the [v]eteran’s multiple and consistent statements which detailed his
in-service exposure to cold weather.” R. at 10. However, the Board also stressed that the veteran’s
service treatment records did not reflect a cold weather incident and found probative the August
2018 VA examiner’s opinion which “clarified that[,] although commonly used for reference to an
upper respiratory infection, [colds as noted in the 1945 record] is not used to describe a cold
7
weather injury.” R. at 9. Because it is thus unclear whether the Board found that the second element
of service connection was satisfied, remand, rather than reversal, is the appropriate remedy. See
Tucker, 11 Vet.App. at 374.
Further, the Court will not now address the appellant’s remaining arguments regarding the
Board’s assessment of the adequacy and probative value of the medical nexus opinions because
the Board’s findings on remand as to the combat presumption may impact its assessment of the
medical evidence. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court will
not ordinarily consider additional allegations of error that have been rendered moot by the Court’s
opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matters, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The appeal of the Board’s October 11, 2018, decision denying entitlement to SMC based
on the need for aid and attendance/housebound status is DISMISSED. After consideration of the
parties’ pleadings and a review of the record, the Board’s decision denying entitlement to disability
compensation for bilateral foot neuropathy due to cold weather exposure is VACATED and the
matters are REMANDED for further proceedings consistent with this decision. The appellant’s
motion for oral argument is denied.
DATED: February 18, 2020
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Copies to:
Jason E. Piatt, Esq.
VA General Counsel (027)

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