Citation Nr: 1136815 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 07-23 264 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Appellant (the Veteran) had active service from February 1972 to January 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the RO in Waco, Texas. The Veteran failed to report for a Board hearing, which was scheduled to be conducted at the RO in February 2010. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear and he has since made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal as if the Board hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2010). In June 2010, the Board remanded this appeal for additional evidentiary development. That development was completed, and the case has since been returned to the Board for further appellate action. In addition to remanding the claims listed above, the Board also denied a claim for service connection for hearing loss, on appeal at that time. The Board's decision with respect to that claim is final. See 38 C.F.R. § 20.1100 (2010). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran did not engage in combat with the enemy. 3. The Veteran had no service in the Republic of Vietnam. 4. Symptoms of tinnitus were not chronic in service. 5. Symptoms of tinnitus have not been continuous since service separation. 6. The Veteran's current tinnitus is not related to service. 7. The Veteran does not have acute or subacute peripheral neuropathy. 8. Symptoms of peripheral neuropathy were not chronic in service. 9. Symptoms of peripheral neuropathy have not been continuous since service separation. 10. The Veteran's current chronic peripheral neuropathy is not related to service. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 2. Chronic peripheral neuropathy was not incurred in or aggravated by service; acute or subacute peripheral neuropathy are not presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a May 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate these claims, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, and the Veteran's written assertions. In addition, the Veteran was afforded a VA examination as to the nexus of his tinnitus. This examination was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting diagnosis, opinion, and rationale were consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to peripheral neuropathy; however, the Board finds that a VA examination is not necessary in order to decide the claim. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). As will be addressed below, the Veteran had no service Vietnam; he has not been diagnosed with acute or subacute peripheral neuropathy, and the Veteran's service treatment records are devoid of any complaints or treatment for chronic peripheral neuropathy. Further, for the reasons explained in this decision, the Board finds that there is otherwise no credible evidence of any in-service disease or injury that may be related to current chronic peripheral neuropathy. Because there is no in-service injury or disease to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disability and active service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The CAVC has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was predicated on the existence of evidence of both in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While such substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by obtaining the Veteran's service personnel records and obtaining an opinion as to whether there is a 50 percent or better probability that tinnitus is etiologically related to the Veteran's military service. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Among the diseases presumed to be associated with herbicide exposure is acute and subacute peripheral neuropathy. The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 38 C.F.R. § 3.309(e). The Board notes initially that, although the Veteran served during a period of war, the evidence does not suggest, and the Veteran does not contend that he engaged in combat with the enemy, or that either claimed disability is related to combat. As such, the combat rule is not applicable. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d) (2010). Service Connection for Tinnitus The Veteran asserts that he was exposed to loud sounds in the service as he worked on the flight line as an aircraft mechanic. The Board accepts this account as consistent with the Veteran's service personnel records and occupational specialty. However, upon review of all the evidence, lay and medical, the Board finds that symptoms of tinnitus were not chronic in service. There is no reference to tinnitus in the service records, and the examination for release from active duty in December 1975 shows normal findings for the ears, eardrums, and auditory acuity. The Veteran has not specifically reported chronic tinnitus in service. He described to the October 2006 VA examiner only a 10-year history of tinnitus, which would place the onset of symptoms of tinnitus well after service. The Board finds that symptoms of tinnitus have not been continuous since service separation. As noted above, the Veteran has reported a date of onset of symptoms approximately in the mid-1990s, which is twenty years after service. The first reference in the record to tinnitus comes in the context of the current claim for compensation. The Board further finds that the weight of the evidence demonstrates that tinnitus is not related to service. The October 2006 examiner opined that the Veteran's hearing loss was not related to service, but did not provide an opinion regarding the relationship of tinnitus to service. An opinion was requested in the Board's remand of this claim, and an opinion was provided in July 2010. The VA examiner opined that it is less likely than not that the Veteran's current tinnitus is etiologically related to noise exposure in service. There is no medical opinion of record that purports to relate tinnitus to service, and there is no credible report of continuity of symptomatology of tinnitus since service separation. The Veteran apparently believes that there is a connection; however, his opinion is inconsistent with the pertinent facts of normal findings at service separation, his own history denying at service separation denying ear or hearing problems, and his own report of onset of tinnitus 20 years after service separation. The Board therefore finds the opinion of a skilled neutral professional to be of greater probative weight. In summation of the Board's findings, although the Veteran was exposed to loud sounds during service, the weight of the evidence demonstrates that symptoms of tinnitus were not chronic in service, symptoms of tinnitus have not been continuous since service separation, and the Veteran's current tinnitus is not related to service. In view of these findings, the Board concludes that a preponderance of the evidence is against the claim, and service connection for tinnitus 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.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service Connection for Peripheral Neuropathy The Veteran contends that his peripheral neuropathy is a result of exposure to herbicides in Vietnam. The Veteran has asserted that he was on a roving maintenance crew repairing aircraft, and that no records were kept at that time; everything was word of mouth. Unfortunately, the weight of the evidence demonstrates that the Veteran did not serve in the Republic of Vietnam. Despite obtaining the Veteran's complete service personnel file, there is no record of any service in the Republic of Vietnam. The National Personnel Records Center informed the RO that the Veteran had no service Vietnam. In any event, the question of presumptive service connection does not require a finding so service in the Republic of Vietnam because the Veteran has never been diagnosed with a disorder that is subject to the presumption of service connection regarding herbicide exposure. The regulations specify that service connection is presumed for acute and subacute peripheral neuropathy. The regulations go on to define acute and subacute peripheral neuropathy as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 38 C.F.R. § 3.309(e). The Veteran specified in his claim that his peripheral neuropathy began in 2006. The first record of peripheral neuropathy in the medical records comes from a November 2005 examination. Thus, by the Veteran's own assertions, and consistent with the medical evidence of record, his symptoms began well after the "weeks or months" of exposure specified in the regulation, and did not resolve within two years of the date of onset. Accordingly, the Board finds that the Veteran does not have acute or subacute peripheral neuropathy, and the presumptions regarding herbicide exposure in Vietnam do not apply. The Board finds that symptoms of peripheral neuropathy were not chronic in service. There is no reference to complaint or treatment in service, and the Veteran was found to be clinically normal regarding all systems when examined for service separation in December 1975. The Board finds that symptoms of peripheral neuropathy have not been continuous since service separation. The Board reiterates that the Veteran has reported onset of symptoms in 2006, and the first diagnosis appears in November 2005. Thus, there is no dispute as to in-service chronicity or post-service continuity of symptoms. The Board finds that the weight of the evidence demonstrates that the Veteran's current chronic peripheral neuropathy is not related to service. There is no medical opinion of record that purports to relate peripheral neuropathy to service. There is also no credible factual basis for finding continuity of symptomatology since service separation to support a nexus to service. The Veteran apparently believes that his current peripheral neuropathy is related to service, but his opinion is inconsistent with the facts and findings. Notably, his assertion of nexus is inconsistent with, and outweighed by, the normal findings at separation, his own reported histories of onset of symptoms, and the lengthy period after service without symptoms; therefore, the Board finds his purported opinion unpersuasive. In summation of the Board's findings, the Veteran does not have acute or subacute peripheral neuropathy; symptoms of peripheral neuropathy were not chronic in service; symptoms of peripheral neuropathy have not been continuous since service separation; and the Veteran's current chronic peripheral neuropathy is not related to service. In view of these findings, the Board concludes that a preponderance of the evidence is against the claim for service connection for peripheral neuropathy, and the claim 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.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for tinnitus is denied. Service connection for peripheral neuropathy is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs