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