Citation Nr: 1302016 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-00 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for neuropathy of all extremities, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the RO in Milwaukee, Wisconsin, which denied the above claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before the undersigned at an October 2010 hearing at the RO. A transcript has been associated with the file. The Board remanded this case in March 2011 and May 2012. It returns now for appellate consideration. In November and December 2012, subsequent to the November 2012 Supplemental Statement of the Case (SSOC), the Veteran submitted additional argument in response to the November 2012 SSOC, with additional copies of previously submitted lay statement and medical evidence, and newly submitted articles regarding peripheral neuropathy and Agent Orange exposure. However, this evidence was already considered by the AOJ in the November 2012 SSOC and thus, the Board finds that a waiver is not required. 38 C.F.R. §§ 19.9, 20.1304(c). FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's currently diagnosed neuropathy involving the extremities, if any, had its onset in active service, manifested to a compensable degree within a year of separation from service, or is otherwise causally or etiologically related to the Veteran's period of active military service, to include presumed in-service herbicide exposure. CONCLUSION OF LAW The Veteran's neuropathy of the extremities was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's record, to include records found in the Veteran's Virtual VA electronic folder. Although we have an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Also, where a Veteran served continuously for ninety (90) days or more during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as an organic disease of the nervous system (i.e., peripheral neuropathy), to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The law provides that, if a veteran was exposed to a herbicide agent during active service, presumptive service connection is warranted for certain disorders delineated under 38 C.F.R. § 3.309(e), which, in relevant part, includes acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). However, where a Veteran's disease is not subject to the presumption, he is not precluded from establishing direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Secretary, under the authority of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41,442-49, and 61 Fed. Reg. 57,586-89 (1996); Notice, 64 Fed. Reg. 59,232-43 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-60 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea and has expanded the relevant period of exposure. Specifically, the new regulation provides that a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. 38 C.F.R. § 3.307(a)(6)(iv), 76 Fed. Reg. 4245 (January 25, 2011). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In this case, the Veteran asserts that he currently suffers from peripheral neuropathy of the extremities due to exposure to herbicide agents during his service in Korea. As regards the Veteran's service in Korea, pursuant to the Board's March 2011 remand and M21-1MR, Part IV, Subpart 2, Chp. 10.p., in September 2011 the RO verified that the Veteran's served in Co. "C." 1st Battalion, 73rd Armor, a unit specifically identified as one that is presumed to have been exposed to herbicides, from May 1969 to January 1970. Accordingly, the Veteran's exposure to herbicides has been established. The Veteran has contended that he had symptoms of neuropathy during service, which he or medical practitioners believed to be hives, at the time of his separation from active service. His STRs include a January 1970 report which shows that he was seen for a rash and was assessed as suffering from typical urticaria-generalized. However, as noted by the Board in the March 2011 remand, it appears that the date "1970" is a typographical error, and should read "January 1971" which is consistent with what the Veteran has since reported. The January 1971 Expiration of Term of Service (ETS) examination reflects a normal neurologic clinical evaluation of the Veteran's upper and lower extremities. The accompanying report of medical history shows that the Veteran denied having any neuritis or paralysis, providing evidence against this claim. Private treatment records include a March 1994 report from neurologist Dr. J.W. which shows that the Veteran was referred by another physician for a neurologic evaluation of a possible deymyelinating disease. He presented with a three-year history of neurologic complaints including numbness in the extremities. Lyme disease was considered and a prior history of hives was noted. The impression was a history that most likely indicated multiple sclerosis (MS) with a normal MRI. In December 1994, the neurologist diagnosed the Veteran with MS that may be related to increased anxiety. A September 1999 report from neurologist Dr. D.L.C. notes the Veteran's past history of neurologic Lyme disease, a concern for possible MS, and leg discomfort. A February 2006 report from neurologist Dr. S.A.E. indicates that the Veteran was referred for a NCV/EMG for evaluation of a cramp, fasciculation syndrome in the legs, and mononeuritis in the left arm and leg. The neurologist noted the Veteran's concerns about Agent Orange exposure, but indicated that he had no seborrheic keratoses or actinic keratoses in the first year after exposure or any ALS-type symptoms. The impression was electrodiagnostic studies which indicated an acquired demyelinating motor sensory polyneuropathy. A March 2006 neurology report from Dr. G.B. reflects an impression of program fasciculation syndrome, but with abnormal muscle biopsy and polyneuropathy of an uncertain etiology. In May 2006, the neurologist referred him to another provider for further treatment and noted his prior exposure to Agent Orange. A May 2009 VA neurology consult report shows that motor nerve conduction and EMG studies resulted in an abnormal study with findings that provided electrical evidence that suggested a mild sensory-predominant peripheral neuropathy. At the October 2010 Travel Board hearing, the Veteran testified that he experienced sensations in his arms and legs during service in July 1970 while stationed at Fort Riley, Kansas. He stated that in January 1971 he was hospitalized at Fort Riley for sensations that the doctors described as a " reaction in his system." In October 2010, the Veteran submitted internet articles about peripheral neuropathy from the National Institute of Health (NIH) and the National Institute of Neurological Disorders and Stroke. In an October 2010 letter, private neurologist Dr. M.F. noted that the Veteran reported that his neurologic symptoms began 40 years ago after he was exposed to Agent Orange. However, after extensive work-ups for neuropathy in 2005 and 2006, no cause for his neuropathy was found. The neurologist diagnosed axonal sensory neuropathy on the basis of an EMG nerve conduction study done in 2009. He stated that he was not really sure if Agent Orange was responsible for the Veteran's symptoms, but acknowledged that he had no other explanation for his neuropathy. In a November 2010 letter, private neurologist Dr. A.E. noted that on neurologic examination, sensation was diminished to pinprick in the distal lower extremities to the top of the feet bilaterally as was light touch. He swayed with Romberg testing. She stated that he had a very extensive work up which was ultimately negative with the exception of a nerve conduction study done in 2009 which revealed a sensory axonal polyneuropathy. His symptoms and exam were congruent with the diagnosis which was an acquired disease. She stated that Agent Orange exposure had been associated with neuropathy therefore, it is at least as likely as not to be caused by or the result of Agent Orange exposure. She also opined that it was at least as likely as not that the symptoms he experienced many years ago "were possibly the same or similar" to the symptoms he is having now. In another November 2010 letter, private neurologist Dr. W.R.B. opined that the Veteran's current condition may be related to symptoms he complained of in 1971. Specifically, after careful review of the Veteran's case, he opined that he suffered from symptoms of peripheral neuropathy (acquired) which involved both the sensory and motor systems. Based on numerous tests and clinical consultations over many years, the neurologist opined that it is a distinct possibility that his current condition may be related to symptoms he complained of as early as 1971, and are likely the result of exposure to a neuro-toxin. A November 2010 report from private neurologist Dr. J.O.D., states that the Veteran has significant neuropathy, the exact etiology of which is not known. A June 2011 report from private neurologist Dr. E.C. reflects an impression of sensory disorders and pain in the limb. The physician opined that despite the possibility of diffuse polyneuropathy or at least bilateral ulnar neuropathies, the Veteran's historical rendition, which is incongruent at times, is not compelling enough to point to a specific unifying neurologic syndrome, providing evidence against this claim. It was noted that he presented with a history of suspected exposure to Agent Orange during service in Korea and stated that his problems started in 1971. In a September 2011 report, the neurologist stated that after reviewing additional neurology records, a unifying diagnosis may not be possible considering that the Veteran had already undergone and extensive work-up. Pursuant to the Board's March 2011 remand, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) peripheral nerves examination in October 2011, at which time the examiner noted the Veteran's history and report of having problems in the fall of 1970 while in the military. He reported that he had a burning sensation of his hands and feet and a "surging" of the nerves. He stated that one or two days prior to discharge from service he was evaluated in an emergency room and was told that his sensations were similar to hives associated with burning and twitching. The Veteran also stated that he saw a physician in the 1970s for his ongoing symptoms. In this regard, the Board must note that the Veteran's statements, over time, regarding the history of this problem are clearly not consistent. This will be addressed below. The examiner noted that the Veteran's STRs documented no evidence of evaluation or treatment for a neurological condition associated with numbness or burning of the hands and feet. In January 1971, the Veteran was evaluated for a complaint of a rash, but the impression was typical urticaria-generalized. No significant drug or medication reaction was noted. She noted that he was evaluated in March 1994 for neurological evaluation of a possible demyelinating disease and reviewed all of the medical evidence of record. The examiner also reviewed the 2010 letters from private neurologists which note a diagnosis of acquired peripheral neuropathy involving both the sensory and motor symptoms which they felt were due to the Veteran's history of Agent Orange exposure. The examiner also noted that the Veteran was evaluated by a private neurologist in June 2011 for complaints of polyneuropathy, paresthesisas, and stiffness, but the neurologist opined that the Veteran's historical rendition was not compelling enough to point to a specific unifying neurologic syndrome. The examiner noted that during a September 2011 follow-up visit, the Veteran was told that a unifying diagnosis may not be possible and noted that repeated EMGs and a nerve/muscle biopsy provided no definitive diagnosis. The examiner noted an "indicated problem" of "bilateral peripheral neuropathy of the extremities," but the diagnosis rendered was "no pathologic diagnosis." She opined that the Veteran's current condition is less likely as not a result of events which occurred during service or due to Agent Orange exposure. The rationale provided was that the Veteran had an episode of urticaria during service which had no physiological connection to the development of neuropathy and was not seen as a precursor or symptom of neuropathy. The examiner explained that urticaria is mediated by cutaneous mast cells in the superficial dermis which release multiple mediators upon activation, including histamine, which cause itching, and vasodilatory mediators, which cause localized swelling in the upper most layers of the skin. The examiner stated that the Veteran currently has symptoms consistent with neuropathy. However, after multiple extensive evaluations by multiple neurologists and other physicians, he has not been given a clear diagnosis of neurological problem that would explain his current symptomatology. The examiner noted that the most recent neurologist, in June 2011, reviewed all of his previous medical records (including those records that diagnosed polyneuropathy) and work-ups, but did not diagnose him with neuropathy. She explained that there was no opinion given as to causation because after extensive evaluation, there was no clear diagnosis to explain his current symptoms. The examiner concluded that the Veteran did not have a disability pattern related to environmental exposures and that he had subjective symptoms without objective findings to confirm a clinically relevant diagnosis. In March 2012, the Veteran submitted an article about peripheral neuropathy from the Mayo Clinic.com article concerning peripheral neuropathy. In September 2012, the Veteran submitted an excerpt of an article from Veterans and Agent Orange: Update 2010 which states, in pertinent part, that "A thorough review of the existing literature in populations with members experiencing early-onset peripheral neuropathy, however, indicates that some individuals continue to manifest neuropathy symptoms long after external exposure has ceased, demonstrating that early-onset peripheral neuropathy is not necessarily a transient condition." In November 2012, the Veteran submitted an article from the Journal of Neurology, Neurosurgery, and Psychiatry with Practical Neurology regarding a 2003 article about the "Clinical Evaluation and Investigating of Neuropathy," which states, in pertinent part, that "the assessment and investigation of a possible neuropathy is one of the most common clinical problems facing the general neurologist." The Veteran also submitted a Fall 2002 article from the Colorado Neurological Institute regarding which states, in pertinent part, that "Diagnosing the cause of a patient's peripheral neuropathy can therefore be a challenging and complex task, oftentimes with no specific etiology identified." It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also, greater weight may be placed on one physician' opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Regarding the opinion evidence that weighs in favor of the claim, the Board has considered the October 2010 opinion of Dr. M. F., a neurologist, who opined that the Veteran's neurological symptoms started 40 years ago when he was exposed to Agent Orange, but that he was "not really sure" if that exposure was the etiological basis for the Veteran's neuropathy. He further opined that there was no other explanation for his neuropathy. The Board has also considered the November 2010 opinion of Dr. W.R.B., that the Veteran's current condition "may be" related to symptoms he complained of as early as 1971, and are likely the result of exposure to a neuro-toxin. However, the speculative terminology used by Drs. M.F. and W.R.B. provide an insufficient basis for an award of service connection, limiting the probative value of the opinions. See Winsett v. West, 11 Vet. App. 420, 424 (1998). See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). As the October 2010 opinion of Dr. M.F. employed the phrase "not really sure," the Board finds that it is speculative in nature, and thus, the Board assigns it little, if any, probative weight. Likewise, the November 2010 opinion of Dr. W.R.B. employed the phrase "may be," it is also afforded little, if any, probative weight. In addition, Dr. W.R.B.'s opinion suggests a relationship between the Veteran's neurologic symptoms and exposure to a neuro-toxin, but Dr. W.R.B. failed to identify Agent Orange as the neuro-toxin to which the Veteran was exposed to during his service and the Board would have to speculate that the neuro-toxin to which he referred is, in fact, Agent Orange. The Board has also considered the November 2010 opinion of Dr. A.E., that it is at least as likely as not that the Veteran's neuropathy was caused by exposure to Agent Orange on the basis that "agent orange exposure had been associated with neuropathy." However, this statement seems to be made on the premise of a general relationship between Agent Orange and neuropathy, as opposed to the Veteran's own exposure during service and his neurologic symptoms. Simply stated, the fact that "A" has been associated with "B" does not make it at least as likely as not that "A" is associated with "B". The logic is flawed. In addition, the opinion that it was at least as likely as not that the symptoms he experienced many years ago "were possibly" the same or similar to his current symptoms is too speculative upon which to base the opinion. Id. As for the opinion evidence that weighs against the claim, the Board accepts as probative evidence on the question of medical nexus and a diagnosis, the opinion of the October 2011 VA examiner. Clearly, this opinion is more definitive than the October 2010 opinion of Dr. M.F., and the November 2010 opinions of Dr. A.E. and Dr. W.R.B. Moreover, the October 2011 VA examiner conducted a thorough examination of the Veteran and a thorough review of the claims file, including the October 2010 and November 2010 private opinions and recent private neurology reports dated in November 2010, June 2011, and September 2011, none of which provides a specific unifying neurologic syndrome or identifies the etiology of the Veteran's neurologic symptoms. The VA examiner, upon reviewing the objective findings and Veteran's subjective complaints, noted that there was no pathologic diagnosis for the Veteran's neuropathy, which is further supported by the November 2010 and June and September 2011 private neurology reports. In addition, the VA examiner's opinion is more thorough than the positive opinions in support of the Veteran's claim in that it discounted the Veteran's contention that there was an etiological relationship between urticaria during service and his current neurologic symptoms. For those reasons, the VA examiner's opinion is afforded great probative value in resolving the medical question of whether the Veteran's claimed neuropathy of the extremities is related to presumed herbicide exposure. In addition, as previously noted, it is clear that the October 2011 VA examiner reviewed the claims file and based their medical opinion on a comprehensive, documented history of the Veteran's in-service and post-service medical treatment and herbicide exposure. Although Drs. A.E. and M.F. noted the Veteran's report of exposure to Agent Orange and Dr. W.R.B. noted exposure to a neuro-toxin, it is also clear that they did not review the claims file. An examiner's review of the claims folder is not required in each case. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). While the Board acknowledges that review of the claims file is not required, a medical examiner's review of the claims folder may heighten the probative value of an opinion, as the claims folder generally contains all documents associated with a veteran's disability claim, including not only medical examination reports and service treatment records, but also correspondence, raw medical data, financial information, RO rating decisions, Notices of Disagreement, materials pertaining to claims for conditions not currently at issue, and Board decisions disposing of earlier claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also notes that the Veteran has submitted treatise evidence regarding peripheral neuropathy diagnoses and its relationship to Agent Orange exposure in support of his claim. These documents, however, contain no findings pertaining to the Veteran's manifestation of neurological symptoms or relate this disability to his service. As a lay person, relying on a generic medical treatise, the Veteran is not qualified to render a medical opinion as to the etiology of his claimed neuropathy of the extremities. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim, but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). These documents supplied by the Veteran simply provide speculative generic statements. Therefore, the aforementioned excerpts lack probative value in the consideration of the Veteran's claim. Although the Veteran has attributed his currently diagnosed neuropathy of the upper and lower extremities to presumed in-service herbicide exposure, he is a layperson and does not have the requisite medical expertise to provide a competent medical opinion linking his current peripheral neuropathy to presumed herbicide exposure in service. Therefore, his opinion has highly limited probative value. Beyond the above, his statements have not always been consistent. The Board particularly takes notice of his testimony before the Board and his statements to health care providers over time. While the Board does not doubt the sincerity of the Veteran's current belief that his symptoms have been present since service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his symptoms and he found to be an inaccurate historian of the disability at issue. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.). The Veteran's overall testimony was, at best, unreliable, with disjointed parts with regard to recollection of events in Korea and Germany. In this regard, the Board understands the Veteran's frustration in his doctors not being always being able to determine the etiology of this problem (and in some cases, its existence), let alone treatment, however, such facts do not provide evidence to support the conclusion that it is at least as likely as not (50% or greater probability) that this problem, assuming it exists, is related to herbicide exposure in a non-diabetic Veteran who served from March 1968 to January 1971, more than 40 years ago. In sum, the Veteran's theory of entitlement to service connection for his neuropathy of the extremities is premised on an allegation that they resulted from his exposure to Agent Orange in Korea. Although the Veteran served in Korea, and is presumed to have been exposed to Agent Orange, neuropathy is not enumerated among the diseases the Secretary has determined are related to herbicide (Agent Orange) exposure. See 38 C.F.R. § 3.309(e). Further, the Veteran has not shown that he was ever diagnosed as having acute or subacute peripheral neuropathy appearing within weeks or months following exposure to herbicides. Id. Consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply. The Veteran may still establish service connection for neuropathy of the extremities by affirmative, competent and probative evidence showing that such disease is at least as likely as not related to service (including to Agent Orange exposure therein). See Combee, supra. However, the most probative and competent evidence does not otherwise show that his currently diagnosed neuropathy of the upper and lower extremities is related to his period of active service. In this regard, the best evidence, notwithstanding the Veteran's statements regarding any earlier treatment, which are found to be not accurate, shows that the Veteran did not seek treatment for neurological symptoms until March 1994 and was not diagnosed with polyneuropathy until February 2006. Accordingly, the first competent evidence of a neurologic disorder was over 23 years after the Veteran's discharge from active duty. Such a long interval of time between service separation and the earliest documentation of a disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no competent medical evidence of record linking any currently diagnosed neuropathy or other variously diagnosed neurological disorders to his military service or exposure to herbicides. As it relates to the Veteran's competent account of in-service symptomatology, the Board notes that while the Veteran has related the onset of his neuropathy to hives and urticaria during service, while the STRs show treatment of urticaria, they also show that his extremities and neurologic system were clinically evaluated as normal, treatment records show that MS (assuming it exists, which is not clear in the medical record in this case) was not diagnosed until 1994 and neuropathy was not clinically diagnosed until 2006 despite prior complaints and evaluation of paresthesias which he argues began during service. For these reasons, we do not find the Veteran's account of in-service symptomatology to be accurate. Here, the credible evidence does not show that symptoms of neuropathy initially manifested within weeks or months of presumed exposure to an herbicide agent and then resolved within two years. Instead, such evidence shows that the Veteran did not begin to experience neurological symptoms and was not diagnosed with neuropathy until many years after service. While the Veteran has stated that he first noticed symptomatology related to peripheral neuropathy during his period of service, STRs are devoid of any reference to any problems referable to peripheral neuropathy and the Veteran did not identify any such symptoms at separation despite having been given the opportunity. Such evidence weighs against the Veteran's assertion of continuity of symptomatology. The Veteran has also argued that he had urticaria and hives during service which was the onset of his neuropathy. However, the VA examiner did not link the Veteran's current neuropathy to service, including treatment of urticaria during service. Thus, for those reasons, his allegation of having experienced a continuity of symptomatology since service is not deemed credible and is far outweighed by the other evidence discussed above. In summary, the Board finds the Veteran does not have a disease for which presumptive service connection based upon herbicide exposure is provided. In addition, the credible and probative evidence of record is against finding that any neuropathy of the extremities was incurred due to exposure to presumed exposure to herbicide agents in service, and the most probative and competent evidence of record does not otherwise relate the Veteran's currently diagnosed neuropathy of the extremities to his period of military service, or show that it manifested within one year of separation from service. Therefore, based upon the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the claim, on a direct basis as well as on a presumptive basis (i.e., as due to herbicide exposure and as a chronic disease), and the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990);38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and the Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial error in VCAA notice has neither been alleged nor shown in this case, as will be explained below. The record reflects that the Veteran was provided all required notice by letters mailed in January 2007, prior to the initial adjudication of the claim. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. While pertinent post-service medical records have been obtained, the Board notes that service treatment records (STRs) may be incomplete for this Veteran (this is very unclear, as it is based on statements from the Veteran which are not always accurate). In this regard, in September 2008, VA issued a formal finding on the unavailability of clinical records from Irwin Hospital at Ft. Riley for treatment received in January 1970 (assuming it occurred, which, again, based on the factual findings above, is found unlikely). VA has found, and the Board agrees, that all efforts to obtain these records had been exhausted and further attempts would be futile. Even if the Board assumes that STR in this case are unavailable through no fault of the Veteran, such as in this case, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board concludes, however, that the heightened duty to assist has been met. Importantly, even if the Board assumes the treatment cited, it would not provide a basis to grant this claim for the reasons cited. Therefore, further efforts to locate this record are not needed. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded an appropriate VA examination and an opinion was obtained with regard to his claim in October 2011. This examination report provides all findings necessary to decide this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In sum, the duties to notify and assist have been satisfied. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for neuropathy of the extremities, to include as secondary to herbicide exposure, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs