Citation Nr: 1307927 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-14 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the upper extremities. 2. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the lower extremities. 3. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral hearing loss disorder. 4. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 5. Entitlement to service connection for peripheral neuropathy of the upper extremities. 6. Entitlement to service connection for peripheral neuropathy of the lower extremities. 7. Entitlement to service connection for a bilateral hearing loss disorder. 8. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1950 to April 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. Jurisdiction of this claim has since been transferred to the Oakland, California, RO. In his April 2010 and June 2010 VA Form 9, the Veteran requested a personal hearing before a Veterans Law Judge. This request was subsequently withdrawn, however, in May 2012, prior to any such hearing being held. Accordingly, the Board will proceed with consideration of the Veteran's claims based on the evidence of record. See 38 C.F.R. § 20.704. These issues were previously before to the Board in July 2012, at which time they were remanded for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA medical records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an August 2007 rating decision, the RO denied service connection for peripheral neuropathy of the upper and lower extremities bilaterally. The RO also denied reopening of service connection for a hearing loss disorder and tinnitus. The Veteran was so informed that same month, and did not file a timely appeal to this decision. 2. Evidence received since the August 2007 rating decision is new and material regarding the issue of service connection for peripheral neuropathy of the bilateral upper extremities, as it contains evidence not previously considered that indicates a current diagnosis. 3. Evidence received since the August 2007 rating decision is new and material regarding the issue of service connection for peripheral neuropathy of the bilateral lower extremities, as it contains evidence not previously considered that indicates a current diagnosis. 4. Evidence received since the August 2007 rating decision is new and material regarding the issue of service connection for a bilateral hearing loss disorder, as it contains evidence not previously considered that indicates a current diagnosis. 5. Evidence received since the August 2007 rating decision is new and material regarding the issue of service connection for tinnitus, as it contains evidence not previously considered that indicates a current diagnosis. 6. The Veteran did not have any foreign or combat service during his active duty period. 7. Symptoms of peripheral neuropathy of the upper and lower extremities were not chronic in service. 8. Symptoms of peripheral neuropathy of the upper and lower extremities have not been continuous since service separation. 9. The Veteran's peripheral neuropathy of the upper and lower extremities is not related to his active service. 10. Symptoms of hearing loss were not chronic in service. 11. Symptoms of hearing loss have not been continuous since service separation. 12. The Veteran's hearing loss and tinnitus are not related to his active service. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a hearing loss disorder, and tinnitus became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the August 2007 rating decision is new and material to reopen service connection for peripheral neuropathy of the upper extremities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence received since the August 2007 rating decision is new and material to reopen service connection for peripheral neuropathy of the lower extremities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Evidence received since the August 2007 rating decision is new and material to reopen service connection for a bilateral hearing loss disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. Evidence received since the August 2007 rating decision is new and material to reopen service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. The criteria for service connection for peripheral neuropathy of the upper extremities have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 7. The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 8. The criteria for service connection for a bilateral hearing loss disorder have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 9. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that, in response to an application to reopen, VA is required to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Veteran was provided notice in a May 2009 letter regarding the date and bases of the previous denial of his claims for service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a hearing loss disorder, and tinnitus. The notice informed the Veteran of the bases for the prior denials of these claims, that current diagnoses of his claimed disorders were not demonstrated either during service or at the time of his initial claim. The Veteran was also informed of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claims. Therefore, the May 2009 letter provided the notice required by the Kent decision. The May 2009 letter also informed the claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA would seek to provide, and the information and evidence the claimant was expected to provide. As such, this letter satisfied VA's notice duties under the VCAA. This letter also informed the Veteran of the general criteria for the assignment of an effective date and initial rating. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Subsequent to the notice, these claims were adjudicated by the RO in July 2009. As initial notice was issued prior to the adverse determination on appeal, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board acknowledges that no VA examination or opinion has been obtained addressing the question of the etiology of the Veteran's claimed disorders, peripheral neuropathy of the upper and lower extremities bilaterally, hearing loss, and tinnitus; however, the Board finds that a VA examination or opinion is not necessary in order to decide these issues. In Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) addressed VA's requirement under 38 U.S.C.A. § 5103A to provide a medical examination or obtain a medical opinion. In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with his or her active service. In the present case, the competent and credible evidence of record does not indicate that the claimed disorders, peripheral neuropathy of the upper and lower extremities bilaterally, hearing loss, and tinnitus, began during or are otherwise directly related to active service. As discussed below, the Veteran's service treatment records are negative for symptoms or a diagnosis of these disorders. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to the claimed disorders in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained further in this decision, the Board also finds that the weight of the evidence demonstrates no chronic symptoms of peripheral neuropathy of the upper or lower extremities or hearing loss in service and no continuity of symptomatology since service separation. The weight of the evidence does not demonstrate complaints or a diagnosis of tinnitus in service. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for depression. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disorders would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disorders and service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion regarding direct or secondary service connection would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims on appeal. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Reopening of Service Connection The Veteran seeks to reopen the claims of service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a bilateral hearing loss disorder, and tinnitus. In an August 2007 rating decision, service connection for these disorders was denied. The RO found that the claimed peripheral neuropathy of the upper and lower extremities bilaterally, a hearing loss disorder, and tinnitus were not demonstrated as having been incurred during service, and were not established as current diagnoses. The Veteran did not initiate a timely appeal of this determination, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c),(d)(3); 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In the August 2007 rating decision, the RO determined that the claimed disorders, peripheral neuropathy of the upper and lower extremities bilaterally, hearing loss, and tinnitus, were not shown to have been incurred during service, and current diagnoses also were not demonstrated in the record. The evidence considered included service treatment records as well as post-service VA treatment records. Since the prior denial of the claim in August 2007, recent evidentiary submissions have included VA medical treatment records, as well as the Veteran's own written contentions. Specifically, the record contains an April 2010 VA clinical record, signed by a physician, which reflects diagnoses of bilateral hearing loss and peripheral nerve disease. The Veteran also submitted his contentions, within his notice of disagreement and substantive appeal, that his claimed current disorders are related to the circumstances of his service, to include combat exposure in Korea. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a bilateral hearing loss disorder, and tinnitus has been received. The VA medical treatment records confirming current diagnoses of these disorders are new, in that they were not of record at the time of the prior final denial. They are not cumulative and redundant of evidence already of record, as they confirm a current diagnosis of the claimed disorders. This evidence is also material because it relates to the unestablished fact that is necessary to substantiate the claim. Specifically, this evidence addresses the basis for the prior denial by confirming a current diagnosis. The Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18 (2010). Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a bilateral hearing loss disorder, and tinnitus. At the time of the 2007 denial, VA had no competent evidence establishing a current diagnoses of the claimed disorders. The more recent medical and lay evidence, confirming current diagnoses, addresses this prior deficit in the record. Regarding the prior denial of service connection for hearing loss, the Board acknowledges that at the time of the prior final denial in August 2007, the record contained a 2003 report of a private audiological examination which indicated bilateral hearing loss, and this evidence was addressed by the RO. Specific to claims for service connection, however, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As the 2003 private examination report does not indicate that the diagnosis of bilateral hearing loss was reached based on the criteria specified at 38 C.F.R. § 3.385, however, the Board does not find, for the limited purpose of determining if reopening is warranted, that it constituted a current diagnosis at that time. As the subsequent diagnosis of hearing loss was rendered by VA personnel, it is reasonably presumed to conform to 38 C.F.R. § 3.385, and this more recent diagnosis is found by the Board to be new and material. Likewise, regarding the prior denial of tinnitus, the Veteran is competent, despite being a layperson, to testify regarding such observable symptomatology as a ringing in his ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the present case, the Veteran has asserted that he has tinnitus as a result of his combat exposure during service. For the limited purpose of determining if reopening is warranted, this testimony is presumed to be credible. See Justus, 3 Vet. App. at 512-513. Thus, the Veteran's assertions in this regard are found to be new and material In conclusion, for the reasons noted above, the Board finds that the additional evidence received since the August 2007 decision is new and material to reopen service connection for peripheral neuropathy of the upper and lower extremities bilaterally, a bilateral hearing loss disorder, and tinnitus. 38 C.F.R. § 3.156(a). (CONTINUED ON NEXT PAGE) Service Connection The Board having reopened the Veteran's service connection claims for peripheral neuropathy of the upper and lower extremities bilaterally, a bilateral hearing loss disorder, and tinnitus, they may now be considered on the merits. In the present case no prejudice results to the Veteran by Board adjudication at this time, as the Veteran has been provided notice of the evidence necessary to substantiate a service connection claim for the claimed disorders, and he has presented evidence and arguments addressing these issues on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The May 2009 letter informed the Veteran of the evidence necessary to substantiate his claims, the evidence that VA will seek to provide, and the evidence the claimant is expected to provide. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). 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) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In the recent case of Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). As noted above, organic diseases of the nervous system, which would include peripheral neuropathy, are recognized as chronic disorders by 38 C.F.R. § 3.309(a). Additionally, sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). See M21-1MR III.iv.4.B.12.a. ). Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply with regard to that disability. See Walker. As a general matter, service connection for a disability requires evidence of: (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). Peripheral Neuropathy of the Upper and Lower Extremities Considering first the Veteran's service connection claims for peripheral neuropathy of the upper and lower extremities, he asserts that he sustained frostbite of the extremities while serving in Korea, resulting in peripheral neuropathy. The Veteran's service treatment records are of record and have been reviewed. He was without any defects of the upper or lower extremities when he was examined and accepted for military service in August 1950. Several months into service, however, he was found to have an inadequate disposition for military service, and proceedings were begun to separate him from service. While a formal service separation examination is not of record, he was afforded medical evaluation as part of his separation proceedings, and a January 1951 summary of this evaluation is of record. It states that, at that time, the Veteran demonstrated "no evidence of significant physical or mental defects as determined by the usual clinical methods." He was separated from service in April 1951. In the years immediately following service, he was treated on several occasions for reported rheumatoid arthritis in the ankle, knee, hip, and back. A duodenal ulcer was also noted. He gave a history of joint pain in service. The Veteran did not report any neurological impairment of the upper or lower extremities, and neurological evaluation was within normal limits. On physical examination for hospital admission in November 1955, he did not report, and was not diagnosed with, peripheral neuropathy of any extremity. A service connection claim for rheumatoid arthritis was denied by VA in March 1956. The Veteran did not again seek VA medical treatment or apply for VA compensation until approximately 2003, when he sought treatment for bilateral hearing loss and tinnitus. As noted above, VA medical treatment records from 2009 to the present confirm current diagnoses of peripheral neuropathy of the upper and lower extremities. He has also been diagnosed with diabetes mellitus. After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that no relevant injury or disease occurred during active service, that peripheral neuropathy of the upper or lower extremities was not chronic in service, and did not manifest to a compensable degree within a year of service separation. The Veteran's service treatment records are negative for any symptoms or diagnoses of peripheral neuropathy, and post-service medical records are likewise negative for any such signs or symptoms for over 50 years after service separation. Additionally, no competent evidence has been presented indicating onset of peripheral neuropathy of the extremities either during service or within a year thereafter, or as the result of any incident of service. While the Veteran did seek treatment for joint pain, diagnosed as rheumatoid arthritis, several years after service separation, no neurological impairment was noted at that time. This 50 plus year period without complaint or treatment is a factor that may be considered regarding continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). With regard to the Veteran's assertions made as part of the current compensation claim that he has peripheral neuropathy as the result of frostbite during service in Korea, while the Veteran is competent to report the onset of such observable symptoms as numbness and tingling of the extremities, the Board does not find his allegations to be credible. His service records and DD-214 are negative for any indications of foreign or combat service, as claimed by the Veteran. The Board notes that the Veteran was on active duty only for approximately nine months and, according to all official documents of record, had no service outside the continental United States. Although he has presented copies of his service identification badge and other official records, he has presented no evidence confirming his alleged Korean service or combat service, and his allegations of such service, and the diseases and injuries incurred therein, are therefore not considered credible by the Board. The Board has also considered the Veteran's statements asserting a nexus between his currently diagnosed peripheral neuropathy of the upper and lower extremities and active duty service. While he is competent to report symptoms as they come to him through his senses, peripheral neuropathy is not the type of disorder that a lay person, such as the Veteran, can provide competent evidence on questions of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, 10 Vet. App. 67, 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). In conclusion, after a careful review of the entire record, because the weight of the evidence is against a finding of an in-service injury or disease manifesting symptoms of peripheral neuropathy, chronic symptoms of peripheral neuropathy during active service, and a relationship between peripheral neuropathy and active service, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for peripheral neuropathy of the bilateral upper and lower extremities. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Hearing Loss and Tinnitus The Board will next consider the Veteran's service connection claims for bilateral hearing loss and tinnitus. He asserts that he was exposed to acoustic trauma during service, to include combat service in Korea. The Veteran's service treatment records are of record and have been reviewed. He was without any defects of his auditory acuity when he was examined and accepted for military service in August 1950. Several months into service, however, he was found to have an inadequate disposition for military service, and proceedings were begun to separate him from service. While a formal service separation examination is not of record, he was afforded medical evaluation as part of his separation proceedings, and a January 1951 summary of this evaluation is of record. It states that, at that time, the Veteran demonstrated "no evidence of significant physical or mental defects as determined by the usual clinical methods." He was separated from service in April 1951. Following service, he was treated on several occasions for rheumatoid arthritis in 1955. On physical examination for hospital admission in November 1955, he did not report, and was not diagnosed with, either hearing loss or tinnitus. The Veteran did not again seek VA medical treatment or apply for VA compensation until 2003, when he reported bilateral hearing loss and tinnitus. As noted above, VA medical treatment records from 2009 to the present confirm a current diagnosis of hearing loss. This diagnosis is presumed, for the purpose of this adjudication, to comply with a hearing loss disorder as defined at 38 C.F.R. § 3.385. The Veteran has also reported current complaints of tinnitus, and he is presumed to be competent to report such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that no relevant injury or disease occurred during active service, that hearing loss was not chronic in service and that hearing loss did not manifest to a compensable degree within a year of service separation. The Veteran's service treatment records are negative for any symptoms or diagnoses of hearing loss or tinnitus, and post-service medical records are negative for any such signs or symptoms for approximately 50 years after service separation. Additionally, no competent evidence has been presented indicating onset of hearing loss or tinnitus during service, indicating that hearing loss was manifested to a compensable degree within one year after discharge, or indicating that hearing loss and tinnitus are the result of any incident of service. This 50 year period without complaint or treatment is a factor that that may be considered regarding the claim for service connection, and weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). With regard to the Veteran's assertions made as part of the current compensation claim that he was exposed to acoustic trauma in the form of rifle, mortar, and machine gun fire as the result of combat exposure during service in Korea, while the Veteran is competent to report the onset of such observable symptoms as loss of auditory acuity and ringing in the ears, the Board does not find his allegations to be credible. As discussed above, his service records and DD-214 are negative for any indications of foreign or combat service, as claimed by the Veteran, and his allegations of such service, to include any diseases and injuries allegedly incurred therein, are therefore not considered credible by the Board. The Board has also considered the Veteran's statements asserting a nexus between his currently diagnosed hearing loss and tinnitus and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, the Veteran does not have the medical expertise to provide competent evidence on the question of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, 10 Vet. App. 67, 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). In conclusion, after a careful review of the entire record, because the weight of the evidence is against a finding of an in-service injury or disease manifesting hearing loss or tinnitus, symptoms of hearing loss or tinnitus during active service, continuous symptoms of hearing loss since service and a nexus between hearing loss or tinnitus and active service, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss and tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been received, the appeal to reopen the claim of service connection for bilateral peripheral neuropathy of the upper extremities is granted. New and material evidence having been received, the appeal to reopen the claim of service connection for bilateral peripheral neuropathy of the lower extremities is granted. New and material evidence having been received, the appeal to reopen the claim of service connection for a bilateral hearing loss disorder is granted. New and material evidence having been received, the appeal to reopen the claim of service connection for tinnitus is granted. Service connection for peripheral neuropathy of the upper extremities is denied. Service connection for peripheral neuropathy of the lower extremities is denied. Service connection for a bilateral hearing loss disorder is denied. Service connection for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs