Citation Nr: 1030948	
Decision Date: 08/18/10    Archive Date: 08/24/10

DOCKET NO.  05-03 555A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to service connection for tinnitus.  

2.  Entitlement to service connection for ulcerative colitis, to 
include as secondary to Agent Orange exposure.  

3.  Entitlement to service connection for chronic peripheral 
neuropathy, to include as secondary to Agent Orange exposure.  

4.  Entitlement to a compensable initial rating for residuals of 
a fractured nose.  


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from February 1965 to February 
1969.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from July 2004, September 2008, and April 2009 rating 
decisions of a Regional Office (RO) of the Department of Veterans 
Affairs (VA).  In June 2010, the Veteran testified before the 
undersigned Acting Veterans Law Judge, seated at the RO.  

The Board notes that the Veteran has also perfected appeals of 
the RO's denial of service connection for Raynaud's phenomenon, 
and for an increased rating for his service-connected 
posttraumatic stress disorder (PTSD).  However, in April 200 and 
December 2009 letters, respectively, he withdrew those issues on 
appeal before the Board; thus, they are no longer within the 
Board's jurisdiction.  See 38 C.F.R. § 20.204 (2009).  

The issue of entitlement to a compensable initial rating for 
residuals of a fractured nose is addressed in the REMAND portion 
of the decision below and is REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.




FINDINGS OF FACT

1.  The Veteran had military service in Vietnam, and is presumed 
to have been exposed to herbicides therein.  

2.  Competent evidence has been presented establishing a current 
diagnosis of tinnitus due to acoustic trauma sustained during 
active military service.

3.  Competent evidence has not been presented establishing onset 
of ulcerative colitis during military service, as the result of a 
disease or injury incurred therein, or as secondary to herbicide 
exposure.  

4.  Competent evidence has not been presented establishing onset 
of peripheral neuropathy during military service, as the result 
of a disease or injury incurred therein, or as secondary to 
herbicide exposure.  


CONCLUSIONS OF LAW

1.  Tinnitus was incurred as a result of military service, and 
service connection is thus warranted.  38 U.S.C.A. §§ 1110, 5107 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009).

2.  Ulcerative colitis was not incurred during active military 
service, and may not be presumed to have been incurred therein, 
and service connection must thus be denied.  38 U.S.C.A. §§ 1110, 
1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 
3.309 (2009).  

3.  Peripheral neuropathy was not incurred during active military 
service, and may not be presumed to have been incurred therein, 
and service connection must thus be denied.  38 U.S.C.A. §§ 1110, 
1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 
3.309 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating a claim for 
VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 
3.102, 3.159, 3.326(a) (2009).  For the reasons to be discussed 
below, the Board finds that VA has satisfied its duties to the 
appellant under the VCAA.  A VCAA notice consistent with 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform 
the claimant about the information and evidence not of record 
that is necessary to substantiate the claim; (2) inform the 
claimant about the information and evidence that VA will seek to 
provide; and (3) inform the claimant about the information and 
evidence the claimant is expected to provide.  See Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements 
apply to all five elements of a service connection claim: (1) 
veteran status; (2) existence of disability; (3) connection 
between service and the disability; (4) degree of disability; and 
(5) effective date of benefits where a claim is granted.  Dingess 
v. Nicholson, 19 Vet. App. 473, 484 (2006).  

VA has made all reasonable efforts to assist the Veteran in the 
development of his claims, has notified him of the information 
and evidence necessary to substantiate the claims, and has fully 
disclosed VA's duties to assist him.  In February and March 2004, 
November 2007, and January 2008 letters, the Veteran was notified 
of the information and evidence needed to substantiate and 
complete the claims on appeal.  Additionally, the November 2007 
letter provided him with the general criteria for the assignment 
of an effective date and initial rating.  Id.  

The Board further notes that, in the present case, initial notice 
was issued prior to the various adverse determinations on appeal; 
thus, no timing issue exists with regard to the notice provided 
the claimant.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

For an increased-compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that VA notify the claimant that, to 
substantiate a claim, the medical or lay evidence must show a 
worsening or increase in severity of the disability, and the 
effect that such worsening or increase has on the claimant's 
employment and daily life.  Vazquez-Flores v. Peake, 22 Vet. App. 
37 (2008).  However, that case was recently overruled by the U.S. 
Court of Appeals for the Federal Circuit, and is no longer 
binding on the Board.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 
(Fed. Cir. 2009).  

The Board further finds that VA has complied with the duty to 
assist by aiding the appellant in obtaining evidence.  It appears 
that all known and available records relevant to the issues on 
appeal have been obtained and are associated with the Veteran's 
claims files.  The RO has obtained the Veteran's service 
treatment records, as well as VA and non-VA medical records.  
Social Security Administration records were also obtained by VA.  
See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992).  He 
has also been afforded VA medical examination on several 
occasions, most recently in 2008.  The Board notes that the VA 
examination reports contain sufficiently specific clinical 
findings and informed discussion of the pertinent history and 
clinical features of the disabilities on appeal and are adequate 
for purposes of this appeal.  In June 2010, the Veteran was 
afforded the opportunity to testify before the undersigned Acting 
Veterans Law Judge.  The Board is not aware, and the Veteran has 
not suggested the existence of, any additional pertinent evidence 
not yet received.  

Based on the foregoing, the Board finds that the Veteran has not 
been prejudiced by any failure of VA in its duties to notify and 
assist him, and that any such violations could be no more than 
harmless error.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 
2004).  In any event, the Veteran has neither alleged nor 
demonstrated any prejudice with regard to the content or timing 
of VA's notices or other development.  See Shinseki v. Sanders, 
129 U.S. 1696 (2009) (reversing prior case law imposing a 
presumption of prejudice on any notice deficiency, and clarifying 
that the burden of showing that an error is harmful, or 
prejudicial, normally falls upon the party attacking the agency's 
determination).  Thus, adjudication of his claims at this time is 
warranted.  



II. Service connection - Tinnitus

The Veteran seeks service connection for tinnitus.  Service 
connection may be awarded for a current disability arising from a 
disease or injury incurred in or aggravated by active military 
service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 
3.304 (2009).  As with any claim, when there is an approximate 
balance of positive and negative evidence regarding any matter 
material to the claim, the claimant shall be given the benefit of 
the doubt.  38 U.S.C.A. § 5107 (West 2002).

On examination for service entrance in February 1965, the Veteran 
denied any history of hearing loss or ear trouble. The remainder 
of his service treatment records are negative for any diagnosis 
of or treatment for tinnitus.  However, he has reported that 
during his service in the U.S. Coast Guard, he served in the 
engine room of his vessel, in close proximity to generators and 
other loud equipment.  

On VA audiological examination in April 2008, the Veteran gave a 
history of tinnitus with onset approximately 15 years prior.  Due 
to the gap of time between the Veteran's reported onset of 
tinnitus and his separation from service, the examiner found it 
less likely than not his tinnitus was related to such service.  

The Board observes that while the Veteran did not report tinnitus 
during military service, his service records confirm service 
aboard a military vessel, and thus support his assertions that he 
had experienced possible acoustic trauma during military service.  
Additionally, the Veteran has already been awarded service 
connection for bilateral hearing loss, indicating some form of 
acoustic trauma has already been conceded by VA.  

At his June 2010 personal hearing before the undersigned, the 
Veteran stated that he first began to notice a ringing in his 
ears shortly after service separation, but did not say anything 
because he was told nothing could be done about it.  
Additionally, tinnitus, defined as a "noise in the ears, such as 
ringing, buzzing, roaring, or clicking," is a disability 
susceptible to lay observations of symptomatology.  Dorland's 
Illustrated Medical Dictionary, 1914 (30th ed. 1994); see 
Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331 
(Fed. Cir. 2006) (addressing lay evidence as potentially 
competent to support presence of disability even where not 
corroborated by contemporaneous medical evidence).

After considering the totality of the evidence, suggestive of 
acoustic trauma during active military service resulting in a 
current diagnosis of tinnitus, the Board affords the Veteran the 
benefit of the doubt and finds service connection for tinnitus is 
warranted.  See 38 U.S.C.A. § 5107 (West 2002).

III. Service connection - Ulcerative Colitis

The Veteran seeks service connection for ulcerative colitis, to 
include as secondary to herbicide exposure.  Under the relevant 
laws and regulations, service connection may be granted for a 
disability resulting from disease or injury incurred in or 
aggravated by active service.  38 U.S.C.A. § 1110 (West 2002).  
As with any claim, when there is an approximate balance of 
positive and negative evidence regarding any matter material to 
the claim, the claimant shall be given the benefit of the doubt.  
38 U.S.C.A. § 5107 (West 2002).  

If a chronic disease is shown in service, subsequent 
manifestations of the same chronic disease at any later date, 
however remote, may be service connected, unless clearly 
attributable to intercurrent causes.  38 C.F.R. § 3.303(b) 
(2009).  However, continuity of symptoms is required where a 
condition in service is noted but is not, in fact, chronic or 
where a diagnosis of chronicity may be legitimately questioned.  
38 C.F.R. § 3.303(b) (2009).

The Veteran contends his ulcerative colitis results from 
herbicide exposure during service.  Under the provisions of 38 
C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent 
during active military, naval, or air service, the diseases set 
forth in 38 C.F.R. § 3.309(e) shall be service-connected if the 
requirements of 38 C.F.R. § 3.307(a)(6) are met even though there 
is no record of such disease during service, provided that the 
rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are 
also satisfied.  

According to 38 C.F.R. § 3.307(a)(6)(iii), a Veteran who, during 
active military, naval, or air service, served in the Republic of 
Vietnam during the Vietnam era shall be presumed to have been 
exposed during such service to an herbicide agent, unless there 
is affirmative evidence to establish that the Veteran was not 
exposed to any such agent during that service.  Service in 
Vietnam includes service in the waters offshore or service in 
other locations if the conditions of service involved duty or 
visitation in Vietnam.  38 C.F.R. § 3.313(a) (2009).  

In the present case, the Veteran's service personnel records 
indicates he was awarded the Vietnam Service Medal, and the 
Vietnam Campaign Medal, confirming service in Vietnam pursuant to 
38 C.F.R. § 3.307(a)(6).  Thus, his exposure to herbicides is 
presumed.  However, ulcerative colitis is not among the disorders 
listed at 38 C.F.R. § 3.309(e).  Therefore, a grant of service 
connection for ulcerative colitis on a presumptive basis must be 
denied.

	Nevertheless, the statutory presumption is not the sole method 
for showing causation, and the Veteran is not precluded from 
establishing service connection with competent proof establishing 
direct causation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. 
Cir. 1994).  Therefore, the Board will consider entitlement to 
direct service connection based on possible onset of ulcerative 
colitis during service, or as the result of disease or injury 
sustained therein.  
	
	In the present case, the Veteran's service treatment records are 
negative for any diagnosis of or treatment for a gastrointestinal 
disorder, to include ulcerative colitis.  The first diagnosis of 
ulcerative colitis within the medical record dates to the late 
1990's, approximately 30 years after service separation.  Within 
a May 1992 private clinical notation, the Veteran reported a 
history of peptic ulcer disease, but noted no other 
gastrointestinal disorders.  Private medical records confirm 
colitis was diagnosed after a colonoscopy in June 1999.  
Subsequent VA and private medical records confirm a current 
diagnosis of ulcerative colitis, and this fact is conceded by the 
Board.  
	
	A VA gastrointestinal examination was afforded the Veteran in 
March 2004.  He reported experiencing rectal bleeding upon 
returning from Vietnam, and was given medication for hemorrhoids.  
He experienced similar symptoms in 1999, when ulcerative colitis 
was diagnosed.  He continued to experience diarrhea, occasional 
rectal bleeding, and pus in his stool.  On physical examination 
the Veteran was well-nourished, with active bowel sounds in all 
abdominal quadrants.  No herniation, tenderness, or 
gastrointestinal symptomatology was noted.  A recent colonoscopy 
confirmed internal hemorrhoids and diverticulitis of the left 
colon.  
	
	Another VA medical examination was afforded the Veteran in 
February 2007, at which time he reported onset of rectal bleeding 
and related gastrointestinal symptomatology in approximately 
1999.  Ulcerative colitis was diagnosed, and he was prescribed 
antibiotics, with some success, although he did continue to 
experience occasional flare-ups.  These resulted in abdominal 
pain, fever, and some rectal bleeding.  On physical examination, 
diverticulitis with a history of ulcerative colitis was 
confirmed.  
	
	At his June 2010 personal hearing, the Veteran stated he 
experiences frequent episodes of diarrhea, abdominal pain, and 
bloating secondary to his ulcerative colitis, and he asserts this 
disorder is the result of his Agent Orange exposure in Vietnam.  
	
	After considering the totality of the evidence, the Board finds 
the preponderance of the record to be against the award of 
service connection for ulcerative colitis, to include as 
secondary to herbicide exposure.  Considering first whether such 
a disability was incurred during military service, the Board 
notes the Veteran's service treatment records are negative for 
any diagnosis of or treatment for a gastrointestinal disorder, to 
include ulcerative colitis.  While the Veteran has stated he 
experienced rectal bleeding and similar symptoms following his 
return from Vietnam, his service treatment records and post-
service records are negative for any such complaints for many 
years following his military service in Vietnam.  The first 
report of record of colitis dates to 1999, when colitis was 
confirmed via colonoscopy.  This diagnosis represents a gap of 
approximately 30 years between service separation and the onset 
of colitis.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 
2000) (lengthy period of absence of medical complaints for 
condition can be considered as a factor in resolving claim); see 
also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming 
Board's denial of service connection where veteran failed to 
account for lengthy time period between service and initial 
symptoms of disability).  While the Veteran may have experienced 
rectal bleeding and related symptoms around the time of service 
separation, this testimony in and of itself does not establish a 
diagnosis of ulcerative colitis at that time; by the Veteran's 
own admission, he was told he had hemorrhoids, and colitis was 
not mentioned.  In the absence of evidence to the contrary, the 
Board finds no competent evidence of onset of ulcerative colitis 
as a chronic disorder during military service, and service 
connection on a direct basis must be denied.  
	
Likewise, service connection for ulcerative colitis as secondary 
to herbicide exposure is not established by the evidence of 
record.  As noted above, ulcerative colitis is not a presumptive 
disorder for veterans with herbicide exposure, and the Veteran 
has not presented competent evidence establishing a nexus between 
this disorder and his acknowledged Agent Orange exposure during 
Vietnam service.  The Veteran has offered his own contentions 
suggesting his ulcerative colitis is the result of military 
service.  However, as a laypersons, the Veteran is not capable of 
making medical conclusions; thus, his statements regarding 
causation are not competent evidence.  Espiritu v. Derwinski, 2 
Vet. App. 492, 495 (1992).  It is true that lay statements may be 
competent to support a claim for service connection by supporting 
the occurrence of lay-observable events or the presence of 
disability or symptoms of disability subject to lay observation.  
See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 
also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) 
(addressing lay evidence as potentially competent to support 
presence of disability even where not corroborated by 
contemporaneous medical evidence).  However, gastrointestinal 
disorders and disorders resulting from chemical exposure are all 
complex disorders which require specialized training for a 
determination as to diagnosis and causation, and they are 
therefore not susceptible of lay opinions on etiology, and the 
Veteran's statements therein cannot be accepted as competent 
medical evidence.  
	
In conclusion, the preponderance of the evidence weighs against 
the award of service connection for ulcerative colitis, to 
include as due to herbicide exposure.  As a preponderance of the 
evidence is against the award of service connection, the benefit 
of the doubt doctrine is not applicable in the instant appeal.  
See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 
55-57 (1991).  
	
	IV. Service connection - Peripheral neuropathy
	
	The Veteran seeks service connection for peripheral neuropathy, 
to include as secondary to herbicide exposure.  The general 
criteria for the award of service connection, to include as 
secondary to herbicide exposure, have been noted above.  
	
As noted above, Veteran who, during active military, naval or air 
service, served in the Republic of Vietnam during the Vietnam Era 
is presumed to have been exposed during such service to certain 
herbicidal agents (e.g., Agent Orange) unless there is 
affirmative evidence to establish that the Veteran was not 
exposed to any such agent during service.  If the Veteran was 
exposed to an herbicide agent during service, the following 
diseases shall be service-connected if the requirements of 38 
C.F.R. § 3.307(a)(6) are met, even though there was no record of 
such disease during service, provided further that the rebuttable 
presumption provisions of 38 C.F.R. § 3.307(d) are also 
satisfied; chloracne or other acneform disease consistent with 
chloracne, Type II diabetes (also known as Type II diabetes 
colitis or adult-onset diabetes), Hodgkin's disease, multiple 
myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral 
neuropathy, porphyria cutaneous tarda, prostate cancer, 
respiratory cancers (cancer of the lung, bronchitis, laryngitis 
or trachea) and soft tissue sarcomas, other than osteosarcoma, 
chondrosarcoma Kaposi's sarcoma, or mesothelioma.  38 C.F.R. 
§ 3.309(e) (2009).  In order for the statutory presumption to 
apply to acute or subacute peripheral neuropathy, symptoms must 
manifest within weeks or months of exposure, and resolve within 
two years of the date of onset.  See 38 C.F.R. § 3.309(e), Note 2 
(2009).  

The Veteran's service treatment records are negative for any 
diagnosis of or treatment for peripheral neuropathy of either the 
upper or lower extremities during military service.  He has 
stated he returned from Vietnam in 1967; however, there is no 
evidence of peripheral neuropathy within one year of the last 
date on which he was exposed to an herbicide agent during active 
military service, or even within one year of his separation from 
service.  Furthermore, by his own admission at his June 2010 
personal hearing, he did not experience peripheral neuropathy 
until 2003, over 30 years after service separation.  

Although the Veteran is unable to satisfy the requirements 
discussed above to be entitled to the regulatory presumption of 
service connection for peripheral neuropathy as a result of 
exposure to Agent Orange, the Board is required to evaluate the 
Veteran's claim on a direct basis as well.  The availability of 
presumptive service connection for a disability based on exposure 
to herbicides does not preclude a Veteran from establishing 
service connection with proof of direct causation.  Stefl v. 
Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 
F.3d 1039 (Fed. Cir. 1994).  

	By the Veteran's own admission, he first sought medical treatment 
for peripheral neuropathy in approximately 2003, when he reported 
worsening paresthesias in the hands, feet, ankles, and legs.  The 
initial diagnosis was of peripheral neuropathy of uncertain 
origin.  
	
	A March 2004 private treatment record authored by S.R.B., M.D., 
indicated the Veteran was experiencing systemic paresthesias and 
discomfort.  MRI studies indicated minimal degenerative disc 
disease of the lumbosacral spine, possible carpal tunnel syndrome 
of the right upper extremity, and ulnar neuropathy of the left.  
A brain MRI and nerve conduction studies were within normal 
limits.  Dr. B. noted the Veteran was "concerned about the 
possibility of Agent Orange exposure in Vietnam", but the 
examiner himself could find no physiologic basis for the 
Veteran's reported symptoms.  In a prior January 2004 clinical 
notation, Dr. B. noted the Veteran had a history of "fairly 
regular alcohol use."  The Veteran reported drinking a case of 
beer per week.  
	
	VA medical examination was afforded the Veteran in March 2004.  
He reported onset of tingling and numbness of the extremities in 
approximately November 2003.  His pain was described as a burning 
sensation.  On physical examination his deep tendon reflexes were 
all within normal limits.  No evidence of muscle wasting or 
paralysis was found.  Range of motion was full.  Peripheral 
neuropathy of unknown etiology was confirmed.  
	
	In a January 2005 written statement, R.B.M., M.D., a private 
physician, stated he first began treating the Veteran in November 
2003 for paresthesias in the lower extremities.  Dr. M. further 
noted that the Veteran was exposed to Agent Orange while serving 
in Vietnam, and therefore "it is entirely possible that [the 
Veteran's] symptomatology is related to Agent Orange exposure."  
Dr. M. next stated while the Veteran has been afforded additional 
treatment and testing at a VA medical center, "it has still not 
been determined as to whether or not Agent Orange was the 
causative agent for his symptom complex."  
	
The Veteran has also sought VA medical treatment for his 
peripheral neuropathy.  On VA consultation in January 2006, 
peripheral neuropathy was confirmed, with decreased pinprick 
sensation in all four extremities.  The examiner determined the 
etiology of the Veteran's peripheral neuropathy was unclear, but 
it may have been related to his alcohol use.  The Veteran was 
noted to have a longstanding history of daily alcohol intake.  

On the occasion of his June 2010 personal hearing, the Veteran 
testified he has been told by his private physician that his 
peripheral neuropathy is the result of Agent Orange exposure.  

After considering the totality of the record, the Board finds the 
preponderance of the evidence to be against the award of service 
connection for peripheral neuropathy.  There is no competent 
medical evidence linking any current peripheral neuropathy with 
the Veteran's military service, to include his conceded herbicide 
exposure.  As noted above, the Veteran's peripheral neuropathy 
did not manifest during military service, or for many years 
thereafter; thus, service connection on a direct basis, or on a 
presumptive basis due to herbicide exposure, is not warranted.  

Nevertheless, the Veteran may still establish an etiological 
nexus between his herbicide exposure and his subsequent 
peripheral neuropathy many years later.  See Combee, supra.  In 
support of his claim, the Veteran has submitted the March 2004 
clinical record of Dr. B., and the January 2005 statement of Dr. 
M.  Considering first the March 2004 clinical record, this 
document reflects only that the Veteran was "concerned about the 
possibility of Agent Orange exposure in Vietnam".  Dr. B. stated 
that he himself could find no physiologic basis for the Veteran's 
reported symptoms.  Dr. B. also noted in a prior record that the 
Veteran had a history of frequent alcohol use.  This statement, 
merely a reflection of the Veteran's own concerns, is not 
sufficient competent evidence to establish a link between 
peripheral neuropathy and herbicide exposure.  

Considering next the January 2005 statement of Dr. M., the Board 
notes that Dr. M. stated only that it was "entirely possible" 
the Veteran's peripheral neuropathy was related to Agent Orange 
exposure.  "It is the responsibility of the BVA . . . to assess 
the credibility and weight to be given to evidence."  Hayes v. 
Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 
Vet. App. 190, 192-93 (1992)).  With regard to the weight to 
assign to these medical opinions, the Court has held that "[t]he 
probative value of medical opinion evidence is based on the 
medical expert's personal examination of the patient, the 
physician's knowledge and skill in analyzing the data, and the 
medical conclusion that the physician reaches . . . As is true 
with any piece of evidence, the credibility and weight to be 
attached to these opinions [are] within the province of the [BVA 
as] adjudicators . . ."  Guerrieri v. Brown, 4 Vet. App. 467, 
470-71 (1993).  

In the present case, the Board notes that Dr. M. stated only that 
a nexus between the Veteran's peripheral neuropathy and his Agent 
Orange exposure during military service may be possible.  The 
Board finds this opinion to be speculative at best and of little 
evidentiary value in that it expressed the relationship as 
possible, rather than probable.  See Perman v. Brown, 5 Vet. App. 
237, 241 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 
(1996); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. 
Derwinski, 2 Vet. App. 609, 611 (1992).  The U.S. Court of 
Appeals for Veterans Claims (Court) has found that an opinion 
expressed in speculative terms, such as "may" implies "may or 
may not", and is inherently speculative.  Id.  The Board also 
observes that the record does not reflect that Dr. M. reviewed 
the Veteran's claims folder or other medical history; among other 
factors, Dr. M. did not discuss the role the Veteran's age and 
history of alcohol use may have played in his development of 
peripheral neuropathy.  On VA consultation in January 2006, 
alcohol use was found to have possibly played a role in the 
Veteran's development of peripheral neuropathy.  Dr. M.'s lack of 
discussion of the Veteran's prior medical history further erodes 
the probative value of his opinion.  Overall, the Board does not 
find this medical opinion to be sufficient to establish a nexus 
between the Veteran's Agent Orange exposure and his peripheral 
neuropathy.  In the absence of such nexus evidence, service 
connection for peripheral neuropathy must be denied.  

The Veteran and his representative have alleged that his 
peripheral neuropathy is the result of herbicide exposure during 
military service in Vietnam.  However, the Board finds that the 
Veteran, a lay person, is not competent to offer an opinion on a 
matter clearly requiring medical expertise, such as opining that 
his current neurological problems are related to military 
service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 
2007) (hold that a veteran is competent to provide a diagnosis of 
a simple disability subject to lay observation, but not competent 
to provide evidence as to more complex medical questions).  
Therefore, this is not a case in which the Veteran and his 
representative's lay statements alone can serve to establish any 
association between the claimed disability and his military 
service.  See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 
Moray v. Brown, 5 Vet. App. 211 (1993).  

In conclusion, the preponderance of the evidence is against the 
Veteran's claim of service connection for peripheral neuropathy, 
to include as secondary to herbicide exposure.  While herbicide 
exposure is conceded by VA, onset of such a disability was many 
years after military service, such that a statutory presumption 
is not warranted, and the competent evidence of record does not 
suggest a nexus between such exposure, or any other incident of 
military service, and his current peripheral neuropathy.  Thus, 
service connection for peripheral neuropathy must be denied.  As 
a preponderance of the evidence is against the award of service 
connection, the benefit of the doubt doctrine is not applicable 
in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); 
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55-57 (1991).  


ORDER

Entitlement to service connection for bilateral tinnitus is 
granted.  

Entitlement to service connection for ulcerative colitis, to 
include as secondary to herbicide exposure, is denied.  

Entitlement to service connection for peripheral neuropathy, to 
include as secondary to herbicide exposure, is denied.  


REMAND

The Veteran seeks a compensable initial rating for his residuals 
of a fractured nose.  According to his June 2010 personal hearing 
testimony, he was afforded a VA examination of his nose and 
sinuses in early 2010 at the Tuskegee VA medical center.  Review 
of the record does not indicate the report of this examination 
has been associated with the claims file.  As this examination 
report is clearly pertinent to the Veteran's pending claim, it 
must be obtained prior to any final adjudication of this claim.  
See 38 U.S.C.A. § 5103A (West 2002).  

Accordingly, the case is REMANDED for the following action:

1.  Request all VA medical records not yet 
obtained from the Tuskegee VA medical center 
regarding examination and/or treatment of the 
Veteran's fractured nose disability.  If no 
record of a 2010 VA examination of the 
Veteran's nose is available, that fact must 
be noted for the record.  

2.  After undertaking any additional 
development deemed appropriate, and giving 
the appellant full opportunity to supplement 
the record, adjudicate the Veteran's pending 
claim in light of any additional evidence 
added to the record.  If any benefit sought 
on appeal remains denied, the Veteran and his 
representative should be furnished with a 
supplemental statement of the case and be 
afforded the applicable opportunity to 
respond before the record is returned to the 
Board for further review.  

The Board offers no opinion at this time regarding the ultimate 
outcome of this appeal.  The appellant has the right to submit 
additional evidence and argument on the matter or matters the 
Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).




______________________________________________
KRISTI BARLOW
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs