Citation Nr: 1319433	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  05-03 555A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for peripheral neuropathy, to include as due to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Coast Guard from February 1965 to February1969.  He served in the Republic of Vietnam (RVN) from September 2, 1966 to February 12, 1967.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  By that rating action, the RO, in part, denied the claim for service connection for peripheral neuropathy, to include as due to Agent Orange exposure.  The Veteran appealed this rating action to the Board.  Jurisdiction of the appeal currently resides with the Montgomery, Alabama RO.

In an August 2010 decision, the Board, in part, denied the Veteran's claim for service connection for peripheral neuropathy, to include as due to Agent Orange exposure.  The Veteran appealed the RO's August 2010 decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2011 Order, the Court adopted VA and the appellant's accredited representative's Joint Motion for an Order to Partially Vacate the Board's decision (Joint Motion).  In the Joint Motion, the Parties specifically requested that the Board's denial of the above-cited issue be vacated and returned to the Board for further medical development.  In accordance with the Court's Order, the Board remanded the issue on appeal to the RO for an additional VA examination and opinion in February 2012.  VA examined the Veteran in February 2013.  Thus, the requested development has been completed and the appeal has returned to the Board for appellate consideration.  

As noted in Introduction section of the Board's February 2012 remand, the Veteran had also perfected appeals of the RO's denial of his claims for service connection for Reynaud's phenomenon, and for an increased rating for his service-connected post traumatic stress disorder (PTSD).  In April 2008 and December 2009 statements to VA, the Veteran withdrew these issues; thus, they are no longer within the Board's appellate jurisdiction.  38 C.F.R. § 20.204 (2012). 


FINDINGS OF FACT

1.  The Veteran served in the RVN during the Vietnam Era from September 2, 1966 to February 12, 1967; thus, his exposure to Agent Orange is presumed. 

2.  The Veteran has not been diagnosed with acute and subacute peripheral neuropath--disabilities recognized by VA as being etiologically related to herbicide exposure. 

3.  The Veteran's peripheral neuropathy of the extremities was not present during active military service or for several decades thereafter and is not otherwise etiologically related thereto, to include the Veteran's presumed Agent Orange exposure in the RVN. 


CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the extremities, to include as due to herbicide (Agent Orange) exposure, are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all of the evidence in the Veteran's claims folders.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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, on the claim.  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 the Veteran). 

I. Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice 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 v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via February and  March 2004 letters of the criteria for establishing service connection for peripheral neuropathy, to include as due to Agent Orange exposure, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  These letters accordingly addressed all notice elements and predated the initial adjudication by the RO in July 2004.  By a July 2009 letter, he also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Nothing more was required.  

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claims decided herein, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).

The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).  Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim decided herein, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO obtained his service treatment and personnel records and VA treatment and examination records, to include those uploaded to the Veteran's Virtual VA electronic claims file.  The RO has also secured all identified private treatment records.  Records from the Social Security Administration are also of record.  

In its February 2012 remand directives, the Board specifically requested that the RO schedule the Veteran for a VA examination with an opinion to determine the etiology of his peripheral neuropathy.  VA examined the Veteran in February 2013.  A copy of the February 2013 VA examination report has been associated with the Veteran's claims files.  (See February 2013 VA peripheral neuropathy examination report).  The February 2013 VA examiner has provided answers to the specific medical questions asked by the Board in its February 2012 remand directives, such that the requested development has been completed.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

The Board concludes that all available records and medical evidence have been obtained in order to make an adequate determination as to the claim for service connection for peripheral neuropathy, to include as due to Agent Orange exposure.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim.  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. 18 (2002).  Therefore, the Board finds that VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A.

II. Laws and Regulations

Service Connection-general criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection is presumed for some diseases even when there is no record of such disease during service if certain requirements are met.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  Applicable here are those for presumptive service connection for chronic diseases, such as organic diseases of the nervous system.  38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  For an organic disease of the nervous system, which is considered chronic, manifestation must have been to a compensable degree within one year from the date of separation from service.  38 U.S.C.A. § 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2), (3), 3.309(a).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

Agent Orange criteria

Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  Here, an April 1967 service treatment record, as well as the Veteran's service personnel records, reflect that he was stationed at Con Son Loran Transmitting Station, RVN; thus, his exposure to Agent Orange is presumed.  Id. 

The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e) (2012).  Under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma- Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 

The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.  38 C.F.R. § 3.309(e). 

VA's Secretary has determined 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 any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57, 586, 57,589 (1996), and 67 Fed. Reg. 42,600, 42,608 (2002). 

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11  (1991), 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).
III. Merits Analysis

The Veteran seeks service connection for peripheral neuropathy.  He maintains that his currently diagnosed peripheral neuropathy is the result of having been exposed to Agent Orange during his period of active military service in the RVN.

The Veteran's service treatment records do not reflect treatment for, or complaints referable to, any neurological deficits or disabilities.  An August 1966 service Overseas examination report reflects that all of the Veteran's systems were evaluated as "normal" with the exception of a scar on his right lower leg.  The examining clinician indicated that there had not been any change in his medical or surgical history since he was last physically examined (i.e., February 1965). 

The Board finds that the preponderance of the evidence of record is against the claim for service connection for peripheral neuropathy, to include as due to Agent Orange exposure on both presumptive and direct bases.  The Board will address each basis separately in its analysis below. 

Presumptive Basis

The Board finds that service connection for peripheral neuropathy, to include as due to Agent Orange is not warranted on a presumptive basis because the Veteran does not meet the regulatory definition of acute or subacute peripheral neuropathy.  The Veteran's peripheral neuropathy initially appeared in 2003, decades after his in-service exposure to Agent Orange, and it did not resolve within two years of that date.  The voluminous post-service VA and private evidence of record, dating from 2003 to 2013, to include reports uploaded to the Veteran's Virtual VA electronic claims file, reflect that the Veteran initially developed a history of aching and paresthesias in the legs of several months duration in November 2003.  (See January 2005 report, prepared by R. B. M., Jr., M. D., reflecting that he had initially evaluated the Veteran in mid-November 2003 for pain, stiffness and weakness  of the legs and upper extremities.  A diagnosis of peripheral neuropathy was not entered at that time).  A December 2003 report, prepared by Family Physicians Clinic, contains an impression, in part, of peripheral neuropathy of [an] uncertain origin.  (See December 2003 report, prepared by Family Physicians Clinic).  Throughout the appeal, the Veteran has continued to have been treated for, and diagnosed as having, peripheral neuropathy of the upper and lower extremities; thus, it cannot be said that it resolved within two years of its onset in 2003.  Therefore, because the Veteran's peripheral neuropathy initially appeared in 2003, decades after his in-service exposure to AO, and it did not resolve within two years of that date, he does not meet the regulatory definition of acute and subacute peripheral neuropathy, and service connection for peripheral neuropathy on a presumptive basis is, therefore, not warranted.  
4
In addition, as an organic disease of the nervous system, such as peripheral neuropathy of the upper and lower extremities, did not manifest to a compensable degree within one year of the Veteran's separation from service in February 1979, presumptive service connection as a chronic disease is also not warranted.  

Direct Basis 

The Board also finds that the preponderance of the competent evidence of record is against an etiological link between the Veteran's peripheral neuropathy and his presumed in-service exposure to Agent Orange.  There are VA and private medical opinions that are supportive of and against the claim.  The Board will discuss these opinions separately in its analysis below.

Evidence in support of the claim includes a January 2005 report, prepared by Dr. R. M., Jr. M. D. and an April 2008 VA physician's opinion.  As noted above, Dr. R. M., Jr. initially treated the Veteran in mid-November 2003 for complaints of paresthesias in the legs that had their onset a few months previously.  Dr. R. M., Jr. noted that since November 2003, the Veteran had progressively developed increased pain, stiffness and weakness of the legs, as well as discomfort and stiffness in the upper extremities.  After noting that the Veteran had provided a history of having been exposed to Agent Orange in the RVN, Dr. R. M., Jr. opined, "According to my understanding of the symptom complex related to Agent Orange exposure, it is entirely possible that Mr. [redacted] symptomatology is related to Agent Orange exposure."  (See January 2005 report, prepared by Dr. R. M., Jr.).
When seen in the internal medicine clinic in April 2008, a VA physician opined, in part, that the Veteran's progressive sensory and motor neuropathy might be based, in part, on Agent Orange exposure.  (See April 2008 VA treatment report).  The Board finds Dr. R. M., Jr.'s and the April 2008 VA physician's opinions to be of little probative value for the following reasons.  First, they are both speculative and equivocal on the relationship between the Veteran's peripheral neuropathy and his presumed in-service Agent Orange exposure.  Dr. R. M., Jr. concluded that it was "entirely possible" that the Veteran's symptomatology was related to his in-service Agent Orange exposure.  The April 2008 VA physician couched his conclusion by stating that the Veteran's progressive sensory and motor neuropathy might be (italics added for emphasis) based, in part, on Agent Orange exposure.  There are a line of precedent cases discussing the lesser probative value of opinions like this that are equivocal, in various contexts, which essentially state that it is possible that what posited is true.  See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); Winsett v. West, 11 Vet. App. 420, 424 (1998).  See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  

In addition, neither Dr. R. M., Jr. nor the April 2008 VA physician provided any further rationale as to their respective opinions.  Aside from the VA physician's statement in April 2008 that the Veteran's neuropathy may have also been related to alcohol and that neuropathies were sometimes idiopathic for which no etiology could be found, neither physician provided any rationale or supporting information for their respective opinions,  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (holding that the probative value of a medical opinion is dependent on the rationale provided).  Thus, for the foregoing reasons, the Board finds the January 2005 opinion of Dr. R. M., Jr. and the April 2008 VA physician's opinion to be of little probative value as to the etiology of the Veteran's peripheral neuropathy of the upper and lower extremities. 

Evidence against the claim includes a February 2013 VA examiner's opinion. In its role as finder of fact, the Board finds that the February 2013 VA examiner's opinion is the most persuasive medical evidence addressing the etiology of the Veteran's peripheral neuropathy of the upper and lower extremities and its relationship to his in-service Agent Orange exposure.  As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  

After a review of the claims files, to specifically include the above-cited private and VA opinions that are supportive of the claim and physical evaluation of the Veteran, the February 2013 diagnosed him with right median neuropathy, left ulnar neuropathy and lower extremity neuropathy (no evidence of lower extremity per electromyography testing).  While the February 2013 VA examiner checked a box on the disability questionnaire report that pertained to secondary service connection (i.e., peripheral neuropathy proximately due to or the result of a service-connected condition), his rationale clearly addressed the relationship, if any, between the above-cited disabilities and the Veteran's presumed Agent Orange exposure.  The VA examiner unequivocally opined that it was likely that the Veteran's carpal tunnel syndrome and ulnar neuropathy of the upper extremities were specific entrapment syndromes that were related to overuse and repetitive motion activities, such as his previous occupation of having worked in a mill.  The VA examiner further opined that the Veteran's lower extremities symptoms were related to his prolonged alcohol use or were idiopathic (no etiology could be found).  The VA examiner maintained that there was no specific evidence that any neuropathy was related to or had been caused by the Veteran's Agent Orange exposure during military service 43 years previously.  The VA neurologist bolstered his opinion by noting that the Veteran's service treatment records were devoid of any evidence of a neuropathy.  (See February 2013 VA examination report).  

The February 2013 VA examiner conducted a thorough examination of the Veteran and provided diagnoses and reasons for his diagnoses.  In addition, this opinion is highly probative because it is supported by the other medical evidence of record, namely private physicians who have also found the peripheral's neuropathy to be of an unknown origin (i.e., idiopathic) related to post-service employment, and/or related to his alcohol abuse.  Specifically, a December 2003 report, prepared by Family Physicians, containing a diagnosis of peripheral neuropathy of an uncertain origin; January, February and March 2004 reports, prepared by Dr. S. R. B., who was unable to find an etiology for the Veteran's complaints of numbness and tingling of the upper and lower extremities.  In January 2004, Dr. S. R. B. diagnosed the Veteran as having general paresthesias and burning sensation of the upper and lower extremities of an uncertain etiology, possibly peripheral neuropathy.  Dr. S. R. B. found the Veteran to have been a work alcoholic and to have had over work syndrome, as well as a history of fairly regular alcohol abuse.  (See January, February and March 2004 reports, prepared by Dr. S. R. B.).  The February 2013 VA examiner's opinion is also supported by a May 2004 report, prepared by Dr. R. M., Jr., wherein he opined that the Veteran's peripheral neuropathy was of an unknown etiology, as well as March 2004 and April 2005 VA physicians' opinions that the Veteran's peripheral neuropathy was of an unknown etiology.  (See March 2004 VA Peripheral Nerve examination report and April 2005 treatment report, respectively).  In addition, a January 2006 VA examiner also concluded that the etiology of the Veteran's peripheral neuropathy was unclear and might have been related to alcohol.  (See January 2006 VA outpatient treatment report).  Thus, as the February 2013 VA examiner's opinion is based on a review of the claims files and rationale that is consistent with the Veteran's service and post-service neurological history, the Board finds it to be of high probative value as to the etiology of his peripheral neuropathy of the upper and lower extremities.  Nieves-Rodriguez v. Peake, supra. 

The Board readily acknowledges that the Veteran is competent to report his symptoms of his peripheral neuropathy of the upper and lower extremities, such as paresthesias in his legs and arms.  However, there is no indication that the Veteran is competent to relate his peripheral neuropathy of the upper and lower extremities to his presumed in-service Agent Orange exposure.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating psychiatric disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  The identification and classification of a psychiatry disorder is also a medical determination.  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

Acknowledgement is given to any account that the Veteran might proffer as to having experienced symptoms of peripheral neuropathy from service until the present time.  He is competent to so recount, though he is a layperson with no medical background, because the symptoms would have been experienced by him during service.  However, he is not credible.  While it is facially plausible that a servicemember, such as the Veteran, would experience numbness indicative of peripheral neuropathy during service, this is inconsistent with the contemporaneous evidence discussed above.  The Veteran's lower and upper extremities were evaluated as normal at an August 1966 Overseas examination.  It is unlikely that this would have been the case had the Veteran been experiencing leg numbness.  See Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (holding that a lack of notation of symptoms where such notation would normally be expected may be considered as evidence that the symptoms did not exist).  

Greater weight is placed on the Veteran's first report of pain, stiffness and weakness of the legs and upper extremities to a private physician in the calendar year 2003, as well as to his testimony in June 2010 that he did not experience peripheral neuropathy until 2003. This is because recall, with time, becomes susceptible to inaccuracy.  See Curry v. Brown, 7 Vet. App. 59 (1994) (finding no error with the Board's conclusion that contemporaneous evidence had greater probative value than reported history).  The aforementioned equates to the Veteran first manifesting symptoms approximately years following his separation from service and first seeking treatment for them over 20 years following this service separation.  Continuity of treatment, as opposed to symptoms, is not required.  See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, a prolonged period without such treatment is a factor that tends to weight against service connection.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Onset during service indeed is of reduced likelihood with a sizeable gap between service and post-service treatment such as that in existence here.  Thus, there can be no chronicity or continuity of symptomatology without in-service manifestation of a disease or at least symptoms of a disease.  Since the above discussion establishes that neither peripheral neuropathy of the upper and lower extremities nor at least symptoms thereof were manifested by the Veteran during service, chronicity and continuity of symptomatology does not exist here. 

Overall, the evidence of record is against the Veteran's contention that his peripheral neuropathy of the upper and lower extremities is related to his period of military service, to include his presumed Agent Orange exposure.

The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claim for service connection for peripheral neuropathy, to include as due to Agent Orange exposure, this doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for peripheral neuropathy, to include as due to Agent Orange exposure is denied. 



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs