Citation Nr: 1325305 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-05 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure, as a substitute claimant. REPRESENTATION Appellant represented by: Timothy M. White, Esq. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran had active service from August 1963 to July 1966. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). Prior to his death, on his VA Form 9, the Veteran requested a Board hearing. However, in March 2013, his wife, who is the appellant in this case, submitted correspondence indicating she wished to cancel the hearing. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Thus, the Board will proceed with appellate review. 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. Under the provisions of 38 U.S.C.A. § 5121A, when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West Supp. 2012)). VA published a proposed rule on substitution on February 15, 2011. See 76 Fed. Reg. 8,666-01 (Feb. 15, 2011) (Proposed Rule). Under the proposed rule, VA would treat qualifying death claims (for example, a VA Form 21-534) as requests to substitute. Id. (proposed to be codified at 38 C.F.R. § 3.1010(c)(2)). Unlike accrued benefits claims that are limited to the evidence of record at the time of the Veteran's death, a substitute claimant would be able to submit additional evidence to be considered by VA that was not of record at the time of the claimant's death. In this case, the appellant filed a VA From 21-534, Application for Dependency and indemnity Compensation, Death Pension, or Accrued Benefits by a Surviving Spouse or Child, in February 2012. Under 38 U.S.C.A. § 5121A and the proposed rule, the RO construed the appellant's VA Form 21-534 as an inferred request to substitute in the appeal of the neuropathy claim, and issued a memo stating such in April 2012. Thus, the issue has been characterized as it appears on the first page of this decision, and the Board will address the merits of the appellate claim with the appellant as the substituted party. Prior to his death, in January 2012, the Veteran filed a request to reopen his claim of entitlement to service connection for ischemic heart disease. In a March 2012 rating decision, the RO deferred the issue in order to send the appellant proper notice regarding new and material evidence. It does not appear that such notice has been sent, or that the RO has adjudicated the claim. The appellant filed a Motion to Substitute in January 2013 with regard to the ischemic heart disease claim. In addition, as noted above, the appellant filed a claim for accrued benefits in February 2012. The RO deferred the issue of entitlement to accrued benefits in an April 2012 rating decision (which is not associated with the claims file, including the Veteran's virtual claims file). The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for ischemic heart disease and entitlement to accrued benefits have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action (if needed). FINDING OF FACT The Veteran served in Vietnam during his active service from August 1963 to July 1966, and was thus presumed to have been exposed to herbicides during active service, but did not have a diagnosis of acute or subacute peripheral neuropathy presumptively associated with herbicide exposure; the Veteran did not incur an injury or disease manifesting peripheral neuropathy during active service; symptoms of peripheral neuropathy were not unremitting in service; symptoms of peripheral neuropathy were not unremitting after service separation; and the Veteran's peripheral neuropathy was not related to active service. CONCLUSION OF LAW The criteria for service connection for peripheral neuropathy have not been met, including presumptively based on herbicide exposure. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). 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. The claimed condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to the claimed condition. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Important for this case, note (2) to 38 C.F.R. § 3.309(e) specifies that 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. Id. Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 U.S.C.A. § 1116(f). Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the 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. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant contends that her late husband's peripheral neuropathy was due to exposure to Agent Orange during active service. Specifically, she avers that he was diagnosed with acute or subacute peripheral neuropathy, which is among the diseases specified in 38 C.F.R. § 3.309(e) for diseases specific to herbicide-exposed veterans. The Veteran's DD Form 214 confirms that he served in Vietnam; therefore, he is entitled to a presumption of exposure to herbicides. 38 U.S.C.A. § 1116(f). However, the Board finds that the weight of the evidence demonstrates that the Veteran was never diagnosed with the acute or subacute peripheral neuropathy that is presumptively associated with herbicide exposure. Namely, as discussed below, the Veteran's peripheral neuropathy was not diagnosed until many years after service separation, and did not manifest within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Indeed, the evidence demonstrates that the first complaint of symptoms of peripheral neuropathy was in 2005, nearly 40 years after service separation and any exposure to herbicides. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not have a diagnosis of acute or subacute peripheral neuropathy as defined by VA regulations, and the presumptive service connection regulations pertaining to Agent Orange exposure do not apply, as the Veteran did not have the type of neuropathy that is listed among the diseases specified in 38 C.F.R. § 3.309(e) for diseases specific to herbicide-exposed veterans. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the appellant's service connection claim on a direct basis. See Combee, 34 F.3d at 1043-1044. After a review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that there was no relevant disease, event, or injury during active service, and that symptoms of neuropathy were not unremitting in service. The Veteran's service treatment records are negative for any report, complaints, findings, treatment, or diagnosis of peripheral neuropathy. At separation, clinical evaluation of the upper and lower extremities was marked as normal. The negative service treatment records, normal clinical evaluation at separation, and the lack of any report or complaints of symptoms of neuropathy at separation is highly probative evidence against the Veteran's claim. Next, having reviewed the evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran's peripheral neuropathy was related to active service. Symptoms of a peripheral neuropathy were not unremitting since service separation in July 1966. Following service separation in July 1966, the evidence of record shows no mention of neuropathy symptoms until October 2005, when VA treatment records indicate that the Veteran reported left leg pain from the knee down, especially since his most recent vascular surgery, a femoropopliteal bypass in 2004. The VA clinician assessed left leg pain of undetermined etiology. In fact, peripheral neuropathy was not diagnosed until September 2008. The absence of post-service complaints, findings, diagnosis, or treatment for nearly 40 years after service separation until 2005 is one factor that tends to weigh against a finding of unremitting symptoms of peripheral neuropathy after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Other evidence of record showing that symptoms of peripheral neuropathy were not unremitting since service includes September 1993 and January 1999 private treatment notes indicating normal neurological examination of the extremities; a January 1997 VA examination that is negative for any report or findings of peripheral neuropathy; a July 2004 VA treatment note which indicates the Veteran specifically denied loss of sensation, numbness, tingling, weakness, and paralysis; and the Veteran's VA Form 21-526 on which he wrote that he began treatment for peripheral neuropathy in September 2008. Thus, the Veteran's own history of treatment for neuropathy suggests that peripheral neuropathy symptoms were not unremitting since service separation, and his statements made in the context of seeking treatment and in the course of this appeal are highly probative evidence against the appellant's claim. Neither the Veteran nor the appellant contended that the Veteran's peripheral neuropathy symptoms began during active service. However, to the extent that their recent assertions made in the context of the current disability claim can be interpreted as contentions of unremitting peripheral neuropathy symptoms since service, the Board finds that these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran and appellant's assertions of unremitting peripheral neuropathy symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service separation examination report which shows a normal clinical evaluation of the extremities; the 1993 and 1999 private treatment notes indicating normal neurological examinations; the January 1997 VA examination that is negative for reports or findings of peripheral neuropathy; the Veteran's VA Form 21-526 in which he indicated he did not begin treatment for peripheral neuropathy until 2008; the lack of any documentation of reports or treatment for peripheral neuropathy until 2005; and the Veteran's prior claims for service connection for other disabilities in December 1996 and March 2005 with no mention of peripheral neuropathy symptoms. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed claims for service connection for multiple disorders in 1996 and 2005, but did not mention any peripheral neuropathy symptoms at that time. This suggests to the Board that there was no pertinent neuropathy symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for peripheral neuropathy, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain peripheral neuropathy in service, or the lack of neuropathy symptomatology at the time he filed the claim, or both. As such, the Board does not find that the evidence sufficiently supports unremitting peripheral neuropathy symptomatology since service, so as to warrant a finding of a nexus between the current peripheral neuropathy and active service. Moreover, the Board finds that no competent medical opinions are of records which support a relationship between the Veteran's peripheral neuropathy and active service. Here, the Veteran was afforded a VA examination in August 2009. He stated that the peripheral neuropathy had been present since 2004, placing its inception 38 years after service separation (providing additional probative evidence against his claim). The VA examiner reviewed the claims file, including service treatment records, and conducted an interview and physical examination of the Veteran. The examiner assessed peripheral neuropathy involving the glove and stocking nerves, and stated that the etiology of the neuropathy was unknown. Thus, although the VA examiner did not provide a nexus opinion, he did not relate the neuropathy to the Veteran's active service. Moreover, there were no physicians who related the Veteran's peripheral neuropathy to his active service and the Veteran's own statements indicate that the problem began many years after service. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's peripheral neuropathy and his military service, including no credible evidence of unremitting symptoms of peripheral neuropathy during active service, unremitting symptomatology of peripheral neuropathy following service separation, or competent medical evidence establishing a link between the Veteran's peripheral neuropathy and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for peripheral neuropathy, and outweighs the Veteran and appellant's more recent contentions regarding in-service unremitting neuropathy symptoms and post-service neuropathy symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely July 2009 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates, and requested information specific to his claimed exposure to herbicides during active service. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. The Board acknowledges that the August 2009 VA medical examiner did not provide a nexus opinion with regard to the claimed peripheral neuropathy; however, the Board finds that a VA nexus opinion is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for peripheral neuropathy. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to neuropathy in service, and there is no duty to provide a VA medical examination or obtain a VA nexus opinion. 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 in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of peripheral neuropathy in service and no continuity of symptoms of peripheral neuropathy following service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the disability, there is no reasonable possibility that a VA opinion could aid in substantiating the current claim for service connection for peripheral neuropathy. 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, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an opinion as to the etiology of the Veteran's peripheral neuropathy 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 peripheral neuropathy and military 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 clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case to obtain a medical opinion would be a useless act. The duty to assist by obtaining a VA nexus opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, prior to his death, the Veteran did not identify, nor has the appellant identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the 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. 183 (2002). ORDER Service connection for peripheral neuropathy is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs