11-31 370
11-31 370
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty July 1970–Feb 1972 (stationed in Germany Mar 1971–Feb 1972).
- Claims: service connection for residuals of a cold injury and for polyneuropathic peripheral neuropathy (including as secondary to a cold injury).
- No service treatment records or separation exam findings documenting cold injury or neuropathy; a January 1973 private record states he was "perfectly well" until a Dec 1972 motor-vehicle accident.
- First allegation of cold injury appears in 2008 statements and private records; VA examinations in April 2017 diagnosed cold injury and neuropathy but attributed symptoms to diabetes/vitamin deficiency or a non-service-connected back injury and concluded nexus to service was less likely than not.
- Board remanded in Jan 2017 for development; remand substantially complied with and April 2017 VA opinions were obtained.
- Board weighed lay statements against STRs, separation exam, private records, and the April 2017 VA medical opinions and found the preponderance of evidence against service connection for both conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for residuals of a cold injury | Veteran asserts he froze his feet while on guard in Germany in 1972 and has longstanding symptoms | VA notes no STR/separation findings, early post-service records show no cold-injury complaints, and 2017 VA exam found nexus less likely than not | Denied — preponderance against service connection |
| Service connection for polyneuropathic peripheral neuropathy | Veteran (and private providers) link neuropathy to military duties and/or alleged cold injury | VA notes no in-service or within-one-year manifestations, private opinions lack rationale, 2017 VA examiner attributes neuropathy to diabetes/vitamin deficiency or post-service back injury | Denied — preponderance against service connection |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (Board need not sua sponte raise procedural arguments not argued by appellant)
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir.) (same principle applied to duty to assist arguments)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Fed. Cir.) (VA medical opinions must be based on review of the claims file and provide a reasoned rationale)
- Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.) (long latency between service and first documented complaint weighs against service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule applies only when evidence is in equipoise)