Citation Nr: 1103036	
Decision Date: 01/24/11    Archive Date: 02/01/11

DOCKET NO.  07-36 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota


THE ISSUE

Entitlement to service connection for peripheral neuropathy, to 
include subacute peripheral neuropathy of the feet, including due 
to exposure to Agent Orange.  


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, 
Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S.J. Janec, Counsel

INTRODUCTION

The Veteran had active service from April 1966 to March 1969.

This matter is before the Board of Veterans' Appeals (Board) on 
appeal from a December 2006 rating decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Paul, 
Minnesota.  In March 2009, the Veteran testified at a hearing 
before the undersigned Veterans Law Judge at the RO; a transcript 
of that hearing is of record.  

In a May 2009 decision, the Board denied the Veteran's claim of 
entitlement to service connection for peripheral neuropathy.  The 
Veteran thereafter appealed the decision to the United States 
Court of Appeals for Veterans Claims (Court).  In a December 2009 
Order, the Court granted the parties' December 2009 Joint Motion 
For Remand, vacated the Board's May 2009 decision, and remanded 
the matter for readjudication.  

Evidence pertinent to the matter on appeal (lay statements from 
the Veteran's daughter and stepson) was received by the Board in 
May 2010.  The Veteran waived initial RO consideration of this 
evidence.  In June 2010, the Board remanded the case to the RO 
for further evidentiary development consistent with the parties' 
Joint Motion for Remand.  The case has now been returned for 
appellate review and the Board is satisfied that the requested 
development has been fully completed.  See Stegall v. West, 11 
Vet. App. 268 (1998) (as a matter of law, a remand by the Board 
confers on the Veteran the right to compliance with the remand 
orders).  


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the 
Vietnam Era; exposure to Agent Orange may be presumed.  

2.  The Veteran is not shown by competent and probative medical, 
and/or competent and credible lay, evidence to have been 
diagnosed with disease that is presumed to be caused by Agent 
Orange, including acute or subacute peripheral neuropathy.  

3.  The Veteran is not shown by competent and probative medical, 
and/or competent and credible lay, evidence to have chronic 
peripheral neuropathy that was clinically manifest within one 
year of discharge from service and continuity of symptomatology 
has not been demonstrated.  

4.  The most probative medical evidence shows that the Veteran's 
currently diagnosed peripheral neuropathy is less likely related 
to his active service, including exposure to Agent Orange.  


CONCLUSION OF LAW

Peripheral neuropathy is not due to disease or injury that was 
incurred in or aggravated by active service, it may not be 
presumed to have been so incurred or aggravated, and it may not 
be presumed to be due to exposure to Agent Orange.  38 U.S.C.A. 
§§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 
38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), (e), (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) 
redefined VA's duty to assist the veteran in the development of a 
claim.  VA regulations for the implementation of the VCAA were 
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 
3.326(a) (2010).  



Duty to Notify

The notice requirements of the VCAA require VA to notify the 
veteran 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; what subset of 
the necessary information or evidence, if any, the VA will 
attempt to obtain; and a general notification that the claimant 
may submit other evidence that may be relevant to the claim.  The 
requirements apply to all five elements of a service connection 
claim:  veteran status, existence of a disability, a connection 
between the veteran's service and the disability, degree of 
disability, and effective date of the disability.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such 
notice must be provided to a claimant before the initial 
unfavorable decision on a claim for VA benefits by the agency of 
original jurisdiction (in this case, the RO).  Id; see also 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, 
insufficiency in the timing or content of VCAA notice is harmless 
if the errors are not prejudicial to the claimant.  Conway v. 
Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice 
errors are reviewed under a prejudicial error rule).  

In an October 2006 letter, prior to the rating decision on 
appeal, the Veteran was provided notice regarding what 
information and evidence is needed to substantiate a claim for 
service connection, as well as what information and evidence must 
be submitted by the Veteran, what information and evidence will 
be obtained by VA, and the need to advise VA of, or submit any 
further medical evidence relevant to, the claims.  He was also 
advised of how disability ratings and effective dates are 
assigned.  Hence, the Board finds that the duty to notify 
provisions have been satisfactorily met, and neither the Veteran 
nor his attorney has pointed out any deficiencies that require 
corrective action.  

Duty to Assist

The record also reflects that VA has made reasonable efforts to 
obtain relevant records adequately identified by the Veteran.  
Specifically, the information and evidence that have been 
associated with the claims file includes the Veteran's service 
treatment records, VA and private treatment records, a July 2010 
VA examination report, lay statements, and the Veteran's 
statements and personal hearing testimony provided before the 
undersigned Veterans Law Judge at the RO in March 2009.  

The Board notes that the July 2010 VA examination report reflects 
that the examiner reviewed the Veteran's past medical history, 
including his service treatment records, documented his current 
medical conditions, and rendered appropriate diagnoses and 
opinions consistent with the remainder of the evidence of record, 
and with supporting rationale.  Nieves-Rodriguez v. Peake, 22 Vet 
App 295 (2008).  The Board therefore concludes that the VA 
medical opinion is adequate for evaluation purposes.  See Barr v. 
Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA 
undertakes to provide a VA examination or obtain a VA opinion, it 
must ensure that the examination or opinion is adequate).  

In this regard, the Board observes that in an October 2010 
response to the September 2010 Supplemental Statement of the 
Case, the Veteran's attorney noted that the Veteran reserved the 
right to argue the adequacy of the July 2010 VA examination 
report because the Supplemental Statement of the Case did not 
denote that the examiner reviewed the Veteran's claims file or 
the conflicting opinions of record.  However, a review of the VA 
examination report itself clearly states that the c-file was 
reviewed and that the Veteran's medical records were viewed in 
CPRS.  Moreover, the report discusses the Veteran's medical 
history, current symptoms, and included a thorough clinical 
evaluation.  Although the examiner did not specifically cite to 
the September 2009 private opinion, this document is clearly 
contained in the Veteran's claims file and the Board may conclude 
that it was appropriately reviewed.  The Board therefore finds 
the Veteran's attorney's assertions of inadequacy to be without 
merit.  

The Veteran's attorney also asserted in her October 2010 response 
that the Veteran reserved the right to argue concerning the 
credentials of the examiner - but did not express any specific 
discernible argument.  Nevertheless, the Board observes that the 
July 2010 medical examination and opinion were provided by a 
medical doctor - who is clearly competent to provide such an 
evaluation and opinion.  Again, a review of this VA examination 
report shows the examiner reviewed and elicited substantial 
information regarding the Veteran's medical history and current 
symptoms and completed an objective evaluation of him.  The 
findings reported appear to be adequate, consistent with other 
information contained in the record, and there is nothing in the 
examination report that leads the Board to believe the 
examination was less than satisfactory.  Therefore, VA has 
satisfied its duty to assist the Veteran by providing an adequate 
medical examination, and has met the directive of the parties' 
December 2009 Joint Motion for Remand.  See Cox v. Nicholson, 20 
Vet. App. 563, 569 (2007) (holding that VA may satisfy its duty 
to assist by providing a medical examination conducted by someone 
who is able to provide "competent medical evidence" under § 
3.159(a)(1)). 

Consequently, the Board finds that VA's duty to assist has also 
been met in this case.  

Analysis

Service connection may be established for a disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established, there is no requirement of an evidentiary showing of 
continuity.  Continuity of symptomatology is required only where 
the condition noted during service is not, in fact, shown to be 
chronic or where the diagnosis of chronicity may be legitimately 
questioned.  38 C.F.R. § 3.303(b).  See Savage v. Gober, 10 Vet. 
App. 488, 495-496 (1997) (holding that when the fact of 
chronicity in service is not adequately supported, then a showing 
of continuity after discharge is required to support the claim); 
Voerth v. West, 13 Vet. App. 117, 120 (1999) (holding that in 
Savage the Court had clearly held that 38 C.F.R. § 3.303 does not 
relieve the claimant of his burden of providing a medical nexus).  

The regulations also provide that service connection may be 
granted for any disease diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes that 
the disability was incurred in service.  38 C.F.R. § 3.303(d).  

Certain chronic disabilities, such as peripheral neuropathy (as 
an organic disease of the nervous system), if manifest to a 
degree of 10 percent within one year after separation from active 
duty, may be presumed to have been incurred in, or aggravated by, 
active service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. 
§§ 3.307, 3.309(a).  

With regard to disabilities a veteran attributes to exposure to 
Agent Orange, the law provides that for veterans who served in 
the Republic of Vietnam during the period beginning on January 9, 
1962, and ending May 7, 1975, service connection may be presumed 
for certain diseases enumerated by statute and regulations that 
become manifest within a particular period, if any such period is 
prescribed.  The specified diseases are:  AL amyloidosis, 
chloracne, type 2 diabetes mellitus, Hodgkin's disease, chronic 
lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, 
acute and subacute peripheral neuropathy, porphyria cutanea 
tarda, prostate cancer, respiratory cancers (cancers of the lung, 
bronchus, trachea, or larynx), soft tissue sarcoma (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), 
ischemic heart disease, Parkinson's disease, and B cell leukemias 
(hairy cell leukemia).  "Acute and subacute peripheral 
neuropathy" is defined 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.  38 U.S.C.A. 
§ 1116; 38 C.F.R. § 3.309(e), including Note 2; 75 Fed. Reg. 
53202 - 53216 (August 31, 2010).  

The Secretary of Veterans Affairs has determined that there is no 
positive association between exposure to herbicides and any other 
condition for which the Secretary has not specifically determined 
that a presumption of service connection is warranted.  See 
Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. 
Reg. 41,442-449 (1996).  The Secretary has clarified that a 
presumption of service connection based on exposure to herbicides 
used in the Republic of Vietnam during the Vietnam Era is not 
warranted for chronic peripheral nervous system disorders.  See 
64 Fed. Reg. 59232 (Nov. 2, 1999); 66 Fed. Reg. 2376 (Jan. 11, 
2001); 67 Fed. Reg. 42600 (June 4, 2002); 68 Fed. Reg. 27630 (May 
30, 2003); 72 Fed. Reg. 32395 (June 12, 2007); 75 Fed. Reg. 32540 
(June 8, 2010); 75 Fed. Reg. 81,332 (December 27, 2010).  

Notwithstanding the foregoing discussion regarding presumptive 
service connection, which arose out of the Veterans Dioxin and 
Radiation Exposure Compensation Standards Act, Public Law No. 98-
542, § 5, 98 Stat.  2725, 2727-29 (1984), and the Agent Orange 
Act of 1991, Public Law No. 102- 4, § 2, 105 Stat. 11 (1991), the 
United States Court of Appeals for the Federal Circuit (Federal 
Circuit) has determined that a claimant is not precluded from 
establishing service connection with proof of direct causation.  
Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. 
Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 
120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 
(1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  Proof 
of direct service connection between exposure and disease entails 
showing that exposure during service actually caused the malady 
which develops years later.  Actual causation carries a very 
difficult burden of proof.  See Combee, 34 F.3d at 1042.  

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 
Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing 
Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the 
determinative issue involves medical causation or a medical 
diagnosis, there must be competent medical evidence to the effect 
that the claim is plausible; lay assertions of medical status do 
not constitute competent medical evidence.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  However, the Veteran is 
competent to state that he has had foot tingling since service.  
See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also 
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

In evaluating the evidence and rendering a decision on the 
merits, the Board is required to assess the credibility, and 
therefore the probative value, of proffered evidence in the 
context of the record as a whole.  See Madden v. Gober, 125 F.3d 
1477, 1481 (Fed. Cir. 1997).  Additionally, it is the 
responsibility of the Board to determine the probative weight to 
be ascribed as among multiple medical opinions in a case, and to 
state reasons or bases for favoring one opinion over another.  
Winsett v. West, 11 Vet. App. 420, 424-25 (1998).  The probative 
value of a physician's statement is dependent, in part, upon the 
extent to which it reflects "clinical data or other rationale to 
support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 
(1999).  Medical opinions that are speculative, general or 
inconclusive in nature cannot support a claim.  See Tirpak v. 
Derwinski, 2 Vet. App. 609, 611 (1992).  See also Stegman v. 
Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to a 
veteran's claim that does little more than suggest a possibility 
that an illness might have been caused by service is insufficient 
to establish service connection).  

If all the evidence is in relative equipoise, the benefit of the 
doubt should be resolved in the veteran's favor, and the claim 
should be granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  
However, if the preponderance of the evidence is against the 
claim, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).  

The evidence reflects that the Veteran served in the Republic of 
Vietnam during the Vietnam Era; hence, exposure to Agent Orange 
may be conceded.  He has asserted that he has a neuropathy 
disorder that has been variously diagnosed by his medical 
providers as "intermittent subacute peripheral neuropathy 
involving numbness in the feet;" "peripheral neuropathy, 
bilateral lower extremities;" "distal symmetrical 
polyneuropathy;" and "[d]istal symmetric sensory motor 
polyneuropathy;" due to his military service, particularly his 
exposure to Agent Orange.  

As outlined above, 38 C.F.R. § 3.309(e) lists certain diseases 
for which service connection may be presumed as due to the 
exposure to herbicide agents.  However, chronic peripheral 
neuropathy and/or distal symmetric sensory motor polyneuropathy 
are not included in the list.  In fact, as noted above, chronic 
peripheral nervous system disorders have been specifically found 
to not have a positive association to exposure to Agent Orange.  
Consequently, service connection for chronic peripheral 
neuropathy and/or distal symmetric sensory motor polyneuropathy 
may not be granted on a presumptive basis due to exposure to 
Agent Orange.  See 38 C.F.R. § 3.309(e).  

With regard to the question of whether the Veteran has acute or 
subacute peripheral neuropathy that may be presumed to be due to 
exposure to Agent Orange, the Board finds that the most probative 
medical evidence in the file establishes that that is not the 
disability he has been diagnosed with.  In a September 2006 
letter, Paul B. Sanford, M.D., a member of an internal medicine 
practice, noted that the Veteran had been under his care for 
"intermittent subacute peripheral neuropathy" that had been 
"steadily progressive over the years."  In an August 2007 
letter addressed to Dr. Sanford, Ed A. Crisostomo, M.D., a member 
of a neurology and myology practice, thanked Dr. Sanford for the 
referral of the Veteran and noted that his impression of the 
Veteran's disease was that it was a distal symmetric sensory 
motor polyneuropathy.  The Board may presume that Dr. Sanford 
referred the Veteran to a specialist in neurology for evaluation 
of a neurological disease.  In light of Dr. Crisostomo's 
specialized training, the Board finds that his conclusions 
regarding the appropriate diagnosis for the Veteran's symptom 
complex are more probative than those of Dr. Sanford.  See 
Winsett, supra.  Additionally, the Board observes that Dr. 
Crisostomo noted a medical history of the Veteran initially 
feeling numbness in his feet in July 2006, and Dr. Sanford 
indicated that the Veteran's "intermittent subacute peripheral 
neuropathy" had been steadily progressive over the years.  These 
descriptions of the disability and its onset clearly do not 
comport with the definition of acute and subacute peripheral 
neuropathy contained in Note 2 of 38 C.F.R. § 3.309(e) which 
defines 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 
onset.  Hence, the Board finds that the Veteran has not been 
diagnosed with "acute or subacute peripheral neuropathy" that 
may be presumed to be due to exposure to Agent Orange and service 
connection for the Veteran's disability may not be granted under 
that theory of entitlement.  

Since service connection may not be allowed on a presumptive 
basis as an Agent Orange disease, the Veteran must show that he 
has peripheral neuropathy that was incurred in or aggravated by 
service on a direct basis pursuant to 38 C.F.R. § 3.303(a), 
38 C.F.R. § 3.303(b) or 38 C.F.R. § 3.303(d); or on a presumptive 
basis as a chronic disability pursuant to 38 C.F.R. § 3.309(a).  

The Board further finds that service connection may not be 
awarded for peripheral neuropathy on a presumptive basis as a 
chronic disease pursuant to 38 C.F.R. § 3.309(a) or on the basis 
of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) 
because the most probative evidence shows that the disease was 
not manifest to a compensable degree within one year of the 
Veteran's discharge from service and continuity of symptomatology 
has not been sufficiently demonstrated.  The Veteran was 
discharged from military service in March 1969.  His service 
treatment records are negative for any complaint, diagnosis, or 
treatment for any type of peripheral neuropathy.  Indeed, 
although the Report of Medical History, provided in conjunction 
with the Veteran's March 1969 separation examination shows that 
the Veteran reported a history of foot trouble (which he 
indicated was a foot infection), he denied a history of neuritis 
or paralysis.  Additionally, the examiner from the corresponding 
Report of Medical Examination noted that the Veteran's feet were 
clinically normal and that he was neurologically normal as well.  
Crucially, the first clinical complaint and/or diagnosis of 
record of peripheral neuropathy was in 2006, more than 30 years 
after the Veteran's 1969 separation from service.  

In this regard, the Board observes that a prolonged period 
without medical complaint can be considered, along with other 
factors concerning a claimant's health and medical treatment 
during and after military service, as evidence of whether an 
injury or disease was incurred in service, which resulted in any 
chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 
1330 (Fed. Cir. 2000).  The Board must consider all the evidence 
including the availability of medical records, the nature and 
course of the disease or disability, the amount of time that 
elapsed since military service, and any other relevant facts in 
considering a claim for service connection.  Cf. Dambach v. 
Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Here, the lack 
of clinical evidence reflecting treatment pertaining to a 
peripheral neuropathy disability until 2006, when considered in 
conjunction with the fact that the Veteran's service medical 
records failed to document any neurological complaints are 
against his claim for service connection.  

The Board observes that during his March 2009 Travel Board 
hearing, the Veteran testified that he experienced tingling and 
burning in his feet while he was Vietnam.  (Transcript (T.) at 
page (pg.) 3.), and the Veteran's attorney asserts that this lay 
evidence alone is sufficient to establish service connection for 
a chronic condition based on a continuity of symptomatology.  
However, as delineated above, 38 C.F.R. § 3.303(b) clearly 
requires more in light of the facts presented herein.  To 
establish chronicity, 38 C.F.R. § 3.303(b) requires that for a 
chronic disease shown as such in service (or within the 
presumptive period) subsequent manifestations of the same 
chronic disease at any later date, however remote, will be 
service connected, unless clearly attributable to intercurrent 
causes.  Here, the fact remains that there are no entries in the 
Veteran's service treatment records showing that he was treated 
for, or diagnosed with, chronic peripheral neuropathy.  Hence, a 
disease entity was not established in service or within the one 
year presumptive period.  Therefore, continuity after discharge 
is required - and the Veteran has not sufficiently demonstrated 
such continuity by competent medical or competent and credible 
lay evidence.  

For example, the Veteran clearly provided a medical history of 
experiencing numbness in his feet to his treating physicians 
beginning in 2006.  At the time of his treatment, he did not 
mention any prior experience with any symptoms similar to that 
involving peripheral neuropathy, including during his military 
service.  Consequently, the Board places greater weight of 
probative value on the history the Veteran presented to medical 
professionals for treatment purposes than it does on his recent 
statements to VA in connection with his claim for monetary 
benefits.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) 
(contemporaneous evidence has greater probative value than 
history as reported by the veteran); see also Cartright v. 
Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a 
veteran's testimony simply because the veteran is an interested 
party; personal interest may, however, affect the credibility of 
the evidence).  

The Veteran is competent to provide testimony as to having some 
degree of tingling and burning in his feet during service.  
Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., 
Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is 
competent to report symptoms because this requires only personal 
knowledge, not medical expertise, as it comes to him through his 
senses).  However, he is not competent to provide an opinion 
regarding the cause of peripheral neuropathy or to render an 
opinion that the symptoms he experienced during military service 
were due to a specific medical condition, i.e., peripheral 
neuropathy, which he is clearly not competent to diagnose, in 
contrast to, for example the tingling that one may experience 
when one's feet fall asleep.  Id.  Simply stated, the Veteran's 
opinion regarding the presence or etiology of peripheral 
neuropathy lacks probative value and it does not constitute 
competent medical evidence.  See Espiritu, 2 Vet. App. at 492, 
494-95.  Peripheral neuropathy is a complex disorder which 
requires specialized training for a determination as to diagnosis 
and causation, and it is therefore not susceptible of lay 
opinions on etiology alone, and the Veteran's statements therein 
cannot be accepted as competent medical evidence.  

The undersigned has fully considered the Veteran's contentions.  
The Federal Circuit has held that lay evidence is one type of 
evidence that must be considered and competent lay evidence can 
be sufficient in and of itself.  The Board, however, retains the 
discretion to make credibility determinations and otherwise weigh 
the evidence submitted, including lay evidence.  Buchanan, supra.  
As noted above, in addition to the fact that the Veteran did not 
complain of symptoms compatible with peripheral neuropathy at the 
time of his separation from service examination, the record is 
devoid of contemporaneously recorded medical evidence of any 
findings indicative of peripheral neuropathy for more than 30 
years after service.  Consequently, the Board concludes that 
service connection for peripheral neuropathy on the basis of 
chronicity pursuant to 38 C.F.R. § 3.303(b) or 38 C.F.R. 
§ 3.309(a) is not warranted.  

Finally, the Board also finds that service connection for 
peripheral neuropathy is not warranted on a direct basis pursuant 
to 38 C.F.R. § 3.303(a), (d) because the most probative evidence 
does not support his claim.  See Combee, supra.  In his 
September 2006 letter, Dr. Sanford stated that it was his opinion 
that it was "possible" that the Veteran's peripheral neuropathy 
"could have been caused by his Agent Orange exposure during the 
Vietnam War."  Since this statement is speculative in nature, 
the Board finds that it lacks significant probative value.  See 
Tirpak, Stegman, supra.  Additionally, Dr. Sanford stated in his 
letter that the Veteran had "no other risk factors that would 
account for this."  However, Dr. Crisostomo noted in his August 
2007 letter to Dr. Sanford that the Veteran drank alcohol and 
remarked that he had informed the Veteran that alcohol can cause 
neuropathy.  He therefore advised the Veteran to cut back on his 
consumption.  Consequently, the Board also finds that Dr. 
Sanford's rationale is not supported by the other clinical 
evidence in the file.  See Bloom, supra.  

Dr. Crisostomo does not render a statement relating the Veteran's 
currently diagnosed distal symmetric sensory motor polyneuropathy 
to his military service, including exposure to Agent Orange.  
Hence, it does not provide competent evidence of a nexus to 
satisfy the requirements of 38 C.F.R. § 3.303(a), (d).  See 
Combee, supra.  Moreover, the opinion provided by the physician 
in conjunction with the July 2010 VA examination also does not 
support the Veteran's claim.  The July 2010 VA examiner concluded 
that the Veteran's peripheral neuropathy/distal symmetrical 
polyneuropathy was not caused by or the result of his military 
service and was not associated with his exposure to herbicide 
agents.  He explained that there was no documentation in the 
service treatment records consistent with complaints of 
peripheral neuropathy, and the Veteran did not have an acute or 
subacute peripheral neuropathy.  The Board has accorded this 
opinion significant probative value because it was based on a 
complete review of the Veteran's clinical records, and renders an 
opinion that reflects consideration of all relevant factors 
pertaining to the Veteran's medical history and the history of 
his peripheral neuropathy.  To the extent that the examiner did 
not cite to the Veteran's specific allegation of experiencing 
tingling in his feet in service in his opinion, the Board notes 
that the examiner noted that the claims file was reviewed - so it 
may be concluded that he was aware of the Veteran's reported 
assertions since they are clearly documented in the file.  
Moreover, the Board has specifically found the Veteran's 
assertions of such tingling to be less than credible in light of 
the absence of any medical evidence documenting the presence of 
such symptoms for more than 30 years after military service.  
Consequently, the July 2010 opinion is competent and probative.  

As the preponderance of the evidence is against the claim, the 
benefit-of-the-doubt rule does not apply, and the claim must be 
denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.  


ORDER

Service connection for peripheral neuropathy, to include subacute 
peripheral neuropathy of the feet, including due to exposure to 
Agent Orange, is denied.  



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs