Citation Nr: 1325346 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-04 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sebaceous cysts, to include as secondary to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure. 3. Entitlement to service connection for thrombocytopenia and leukopenia, to include as secondary to herbicide exposure. 4. Entitlement to service connection for a kidney disability, claimed as renal cysts, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966, with honorable service in the Republic of Vietnam (RVN) from August 1965 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefits sought on appeal. This matter was previously before the Board in December 2009 and May 2012, at which time it was remanded for further development. In pertinent part, in May 2012, the Board denied the reopening of a claim of entitlement to service connection for fibromyalgia; reopened and denied the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder; and remanded the remaining claims on appeal. The Veteran and his wife testified before the Board in August 2009. A transcript of that proceeding has been associated with the claims file. The Acting Veterans Law Judge that had presided over his August 2009 hearing, however, and that authored that December 2009 remand of his claims, is no longer employed by the Board. VA regulations require that the Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Consequently, in a letter dated April 7, 2011, the Veteran was notified of that Judge's status and of the consequent options, including the right to have another hearing before a different Judge that will ultimately decide the appeal. In his April 18, 2011, response, the Veteran indicated he did not want another hearing before another Veterans Law Judge. The Board has also reviewed the Veteran's electronic Virtual VA file in association with this decision. FINDINGS OF FACT 1. The Veteran has been certified as having served in the Republic of Vietnam from August 1965 to January 1966 and he is presumed to have been exposed to herbicide agents while on active duty. 2. The preponderance of the evidence is against the finding that the Veteran's sebaceous cyst, diagnosed as an epidermal inclusion cyst, had its onset in service or is etiologically related to any incident, disease, or herbicide exposure during his active service. 3. The Veteran has never been diagnosed with acute or subacute peripheral neuropathy; he did not exhibit peripheral neuropathy in-service; peripheral neuropathy was not manifested within one year of separation from service; and peripheral neuropathy is not etiologically related to any incident, disease, or herbicide exposure during his active service. 4. The preponderance of the evidence is against the finding that the Veteran's blood disorder, diagnosed as thrombocytopenia and leukopenia, had its onset in service or is etiologically related to any incident, disease, or herbicide exposure during his active service. 5. The preponderance of the evidence is against the finding that the Veteran's kidney disorder, diagnosed as renal cysts, had its onset in service or is etiologically related to any incident, disease, or herbicide exposure during his active service. CONCLUSIONS OF LAW 1. An epidermal inclusion cyst, status post removal, was not incurred in or aggravated by active service, to include as a result of exposure to herbicides. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy was not incurred in or aggravated by active service, to include as a result of exposure to herbicides, and may not be presumed to have been caused or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. A blood disorder, diagnosed as thrombocytopenia and leukopenia, was not incurred in or aggravated by active service, to include as a result of exposure to herbicides. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. A kidney disorder, diagnosed renal cysts, was not incurred in or aggravated by active service, to include as a result of exposure to herbicides. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103 , 5103A (West 2002). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the RO sent the appropriate evidentiary development letters in June 2006 (prior to the initial adjudication of the Veteran's claims in August 2006) and in May 2010, advising the Veteran of the evidence needed to substantiate his claims, to include on the basis of herbicide exposure. These letters advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims, pursuant to the Court's holding in Dingess, supra. The claims were last readjudicated in a supplemental statement of the case issued in March 2013. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable, relevant evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records and VA medical records. He has been afforded multiple VA examinations in association with his claims. He also testified at a Board hearing in August 2009; thereafter, he was presented with additional opportunity to testify at a new hearing after being informed that the Veterans Law Judge who conducted the hearing was no longer employed at the Board; he declined to do so. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board notes that the issues were addressed at the 2009 hearing and the development (medical examinations and nexus opinions) necessary to substantiate the claims was ordered by the Board. Thus, if error found, the Veteran was not prejudiced. See Bryant, 23 Vet. App. at 498-99 ( "[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit. Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled."). This claim was previously remanded in May 2012 for additional development. Specifically, the Board instructed the Veteran be provided new VA examinations, which were conducted in December 2012 and are adequate. As such, there has been substantial compliance with the previous Board remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 269, 271 (1998). The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d) ; see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006 I. Service Connection - Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of 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 presently existing 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 a disease 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; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage v. Gober, 10 Vet. App. 488 (1997) and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because organic diseases of the nervous system are explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that the theory of continuity of symptomatology in service connection claims is applicable to this claim; it is not, however, applicable to the claims relating to sebaceous cysts, renal cysts, and thrombocytopenia and leukopenia (B-12 deficiency). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2012). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) (2012) are met, even if there is no record of such disease during service. These include chloracne or other acneform diseases consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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) Note 2. However, as discussed in detail below, the Veteran has been diagnosed with chronic progressive neuropathy, which, as noted by multiple VA examiners, is clinically inconsistent with acute or subacute peripheral neuropathy. See, e.g., VA Examinations, June 2010 and December 2012. As such, the presumptive provisions relating to acute and subactue peripheral neuropathy under 38 C.F.R. § 3.309(e) are inapplicable to this claim. [The Board, however, is mindful that VA is proposing to amend §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy" and removing Note 2 to § 3.309(e), which currently requires, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Crucially, under these proposed amendments, peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient. As detailed below, the record does not establish that chronic peripheral neuropathy manifested within one year after the date of last exposure to herbicides. Also, the VA examiner found that the axonal characteristic of the EMG study indicated a metabolic etiology for the Veteran's neuropathy as opposed to a demyelinating etiology, and that the polyneuropathy was attributable to mechanical factors rather than herbicides.] Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (94). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Factual Background and Analysis Agent Orange Presumption - All Claims The Veteran contends that his sebaceous cyst (status post removal with residual scarring), renal cysts, peripheral neuropathy, and thrombocytopenia and leukopenia (B-12 deficiency), are the result of exposure to herbicide agents while serving in the Republic of Vietnam. As an initial matter, the Board notes that the Veteran has been certified as having served in the RVN from August 1965 to January 1966. As such, he is presumed to have been exposed to herbicide agents while on active duty. However, the Board also observes that none of the Veteran's current disabilities of the skin (a sebaceous, or epidermal inclusion cyst), nerves (peripheral neuropathy), blood (thrombocytopenia and leucopenia), and kidneys (renal cysts) is listed as being entitled to presumptive service connection based on Agent Orange exposure. In addition, while the Veteran has claimed entitlement to service connection for a peripheral neuropathy, he has not been diagnosed with, and the evidence does not suggest the presence/history of acute or subacute peripheral neuropathy, which is the only neuropathy that is presently presumptively linked to Agent Orange exposure. In short, none of the Veteran's claimed disabilities is entitled to presumptive service connection based on exposure to Agent Orange. Therefore, service connection based on Agent Orange exposure must be denied. 38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630 -41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). (Indeed, while VA is proposing to amend the regulation to essentially include chronic peripheral neuropathy, as detailed below, the record does not establish that chronic peripheral neuropathy manifested within one year after the date of last exposure to herbicides. Also, the VA examiner found that the axonal characteristic of the EMG study indicated a metabolic etiology for the Veteran's neuropathy as opposed to a demyelinating etiology, and that the polyneuropathy was attributable to mechanical factors rather than herbicides.) The Board will next determine whether the Veteran is entitled to direct service connection for any of the claimed disabilities, or whether he is entitled to presumptive service connection for any of the chronic disabilities that he has claimed. Consideration of entitlement to direct service connection will include the question of whether the evidence of record demonstrates an actual, direct link between any of the disabilities at issue and the Veteran's in-service herbicide exposure. 1. Sebaceous Cysts The Veteran has testified that his sebaceous cyst, currently diagnosed as an epidermal inclusion cyst of the forehead, status post removal with residual scarring, first manifested while in-service (described as a waxing and waning condition - showing up "from time to time") and that the cyst was continuously present until it was surgically removed in October 1990. See Board Hearing Transcript. He believes the cyst is directly related to in-service herbicide exposure. Service treatment records are negative for complaints, treatment, or diagnoses relating to an epidermal inclusion or sebaceous cyst of the forehead. The January 1966 separation examination reflected a clinically normal skin evaluation, and the Veteran checked "no" as to having tumors, growths, cysts, and skin diseases on the contemporaneous Report of Medical History. Following his January 1966 separation from service, the Veteran served on a brief period of active duty for training from July 1, 1967 to July 15, 1967. A July 1, 1967 DD Form 220 reflected that, since his January 1966 separation examination (active duty), he had been treated in April 1967 by Drs. D. and S. for a "cyst infection" and that the cyst still needed to be removed. The document did not further indicate the type or location of the cyst. The Veteran affirmed that he was currently medically qualified to perform satisfactory military service. The next complaints or treatment of a sebaceous cyst are not shown until October 1990, at which time the cyst (post-operatively diagnosed as an epidermal inclusion cyst) was surgically removed from the Veteran's forehead. Of note, the October 1990 operative report indicated that the cyst had been present for the last "three to four years with drainage." In June 2010, the Veteran underwent a VA skin examination. Notably, the Veteran denied having any skin problems while in Vietnam (from 1965 to 1966). Unfortunately, that examiner based his opinion on an erroneous reading of the Veteran's service dates and the pertinent VA regulations regarding herbicide exposure. A new VA examination was thus requested pursuant to the Board's 2012 remand. The Veteran underwent a new VA skin examination in December 2012. The physician who conducted the VA examination opined that the Veteran's epidermal inclusion cyst was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran had denied having a tumor, cyst, or growth on his Report of Medical History; that his skin was noted as clinically normal upon separation in January 1966; and that the Veteran had not been on active duty in April 1967 when he was reportedly treated for an infected cyst. In addition, the examiner stated that he was unaware of any medical literature linking epidermal inclusion cysts directly to herbicide exposure. Based on the foregoing, he concluded that the cyst was not related to service, to include exposure to herbicides therein. In terms of a current disability, the June 2010 and December 2012 VA examinations note that the Veteran has an epidermal inclusion cyst of the forehead, status post removal, with scarring. The Board finds, however, that entitlement to service connection for this particular skin disability cannot be established in this case. With respect to direct service connection, although the Veteran has variously asserted that his cyst was present during service (and specifically, present at discharge from service), the contemporaneous objective medical evidence and lay evidence reflect otherwise. Indeed, service treatment records do not show any complaints, treatment, or diagnoses relating to a cyst; the Veteran expressly denied having cysts or skin problems on his January 1966 Report of Medical History; and the January 1966 separation examination reflected a normal clinical evaluation of the skin. In this case, the Board finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's own statements and responses on medical questionnaires, to be highly probative as to the issue of in-service incurrence. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Board additionally notes that the Veteran's post-service statements regarding the onset of the cyst have been inconsistent throughout the record. Indeed, during his August 2009 Board hearing he stated that the cyst was present at discharge from service in January 1966; upon VA skin examination in June 2010, he expressly denied having any skin problems while serving in Vietnam from August 1965 to January 1966; and on the 1990 VA operative/cyst removal report, he indicated that his cyst had been present for only the last three to four years. Thus, while the Veteran is competent to report as to the onset of his cyst, the credibility of such statements is greatly diminished by the aforementioned inconsistencies and the objective contemporaneous evidence (i.e., the absence of objective evidence showing a cyst in-service). Based on the above, the evidence (both lay and medical) is insufficient to establish the in-service disease element (in-service injury, or herbicide exposure, will be discussed below) for a direct service connection claim. In so finding, the Board acknowledges that the Veteran was apparently treated for an unspecified cyst in April 1967, a little over one year after his separation from service in 1966. However, since an epidermal inclusion cyst and/or sebaceous cyst is not a chronic disability under 38 C.F.R. § 3.309(a), a showing of such a disability to a compensable degree within one year of his separation from service is also insufficient to demonstrate the in-service element of the service connection claim. See Walker, supra. Furthermore, as noted above, the theory of continuity of symptomatology is inapplicable in this case. See 38 C.F.R. § 3.303(b). Nevertheless, as noted above, the Veteran's conceded exposure to herbicides satisfies the in-service injury element of a service connection claim. In this case, however, there is no competent medical opinion of record linking his currently diagnosed epidermal inclusion cyst (status post removal) to his service, to include to his Agent Orange exposure. (Emphasis added). In fact, the only medical opinion of record is against the Veteran's claim for service connection. Indeed, the December 2012 VA examiner concluded that the epidermal inclusion cyst was not incurred in-service or otherwise related to herbicide exposure therein. The Board finds the VA examiner's opinion to be of great probative value as it was based on examination of the Veteran, his documented medical history (both in-service and after service), and it was supported by a rationale. There are no medical opinions of record to the contrary. Significantly, the Veteran has not submitted, or referenced any probative medical evidence which refutes the findings of no casual connection between in-service herbicide exposure and other disabilities, e.g., sebaceous/epidermal cysts. With respect to the Veteran's belief that his cyst is related to herbicide exposure, the Veteran is not competent, as a layperson, to link his in-service Agent Orange exposure to a subsequent skin condition as this involves a very complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In short, the Board concludes that the preponderance of the evidence is against granting entitlement to service connection for an epidermal inclusion cyst on a direct basis (to include as directly related to Agent Orange exposure) or on a presumptive basis based on verified exposure to Agent Orange. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection for a skin disability must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 2. Peripheral Neuropathy The Veteran has also claimed entitlement to service connection for peripheral neuropathy. Again, he asserts that this disability is directly related to in-service herbicide exposure. Unlike his claim for a sebaceous cyst, the Veteran has not specifically asserted that his peripheral neuropathy was present during service and/or continuously thereafter. See Hearing Transcript, generally. The Board again initially notes that the Veteran has been diagnosed with chronic progressive neuropathy, or axonal sensorimotor polyneuropathy, which, as noted by the VA examiners, is clinically inconsistent with acute or subacute peripheral neuropathy. See, e.g., VA Examinations, June 2010 and December 2012. As such, the presumptive provisions relating to acute and subactue peripheral neuropathy under 38 C.F.R. § 3.309(e) are inapplicable to this claim. Service treatment records are silent as to complaints, treatment, or diagnoses relating to neurological disorders or peripheral neuropathy. The January 1966 separation examination documented normal neurologic, lower extremity, and feet evaluations, and the Veteran expressly denied having neuritis, paralysis, or cramps in legs on the contemporaneous Report of Medical History. Following service, VA treatment records first document complaints of burning pain in the feet and legs for the past year in June 1990. The Veteran also stated that his left hand and left leg had been falling asleep a lot. The contemporaneous nerve conduction study revealed normal findings. In September 1991, he was diagnosed with possible peripheral neuropathy. In June 2010, the Veteran underwent a VA general examination. He reported that he was first diagnosed with peripheral neuropathy in the 1990's. Notably, the examiner provided a diagnosis of chronic progressive neuropathy, which, he stated was clinically inconsistent with acute or subacute peripheral neuropathy. He stated that his hand numbness had been present for the last 10 years or longer. Unfortunately, the June 2010 examiner based his opinion on an erroneous reading of the Veteran's service dates and the pertinent VA regulations regarding herbicide exposure. A new VA examination was thus requested pursuant to the Board's 2012 remand. The Veteran underwent a new VA neurological examination in December 2012. The physician who conducted the VA examination diagnosed peripheral neuropathy, but stated that the etiology was currently "unknown." He suggested that the Veteran undergo EMG/NCV testing. The Veteran underwent an EMG study in December 2012, which confirmed severe left L5-S1 polyradiculopathy. An addendum VA opinion was obtained in February 2013. Based on the additional information, the February 2012 examiner opined that the axonal sensorimotor polyneuropathy was less likely than not caused by or a result of his exposure to herbicides in-service. The examiner explained that the axonal characteristic of the EMG study indicated a metabolic etiology for his neuropathy as opposed to a demyelinating etiology, although all previous testing for treatable metabolic neuropathies had been negative. With respect to the polyneuropathy, the examiner stated that this was attributable to mechanical factors and not herbicides. The examiner further noted that the Veteran had been diagnosed with neuropathy in 1991, long after his exposure to herbicides; that the January 1966 separation examination showed all "normal" evaluations of the nerves, feet, lower extremities, and skin; and that the Veteran had denied cramps in the legs, foot troubles, neuritis, and paralysis on the Report of Medical History. According to the examiner, this all indicated an absence of neuropathic complaints at the end of his tour in Vietnam. The examiner also stated that he was unable to find any documentation that he suffered neuropathic symptoms in the years immediately following his tour in Vietnam. In sum, he stated that there was no documentation of the onset of a disabling or non-disabling neuropathy within one year of separation from service, and it was less likely than not that his neuropathy was related to herbicide exposure. In terms of a current disability, the June 2010 and December 2012 VA examinations note that the Veteran has peripheral neuropathy, or more specifically, axonal sensorimotor polyneuropathy. The Board finds, however, that entitlement to service connection for this particular nerve disorder cannot be established in this case. First, there is no evidence of a neurological disorder in-service, and the Veteran has not asserted otherwise. As discussed above, service treatment records, to include the separation examination, are silent as to complaints, treatment, or diagnoses relating to a neurological disorder, and the Veteran expressly denied any neurological related symptomatology on the contemporaneous Report of Medical History. There is no post-service evidence of peripheral neuropathy until 1990, almost 24 years after separation from service. Furthermore, there is no competent medical opinion of record that links the Veteran's neurological disorder, diagnosed as peripheral neuropathy, to his in-service exposure to Agent Orange. In fact, the only medical opinion of record is against the Veteran's claim for service connection. Indeed, the February 2013 VA examiner opined that it was less likely than not that the neuropathy was caused by or a result of herbicide exposure. In so finding, he noted that the type of neuropathy diagnosed was more likely attributable to mechanical and/or metabolic factors, and not herbicides. The Board finds the VA examiner's opinion to be of great probative value as it was based on examination of the Veteran, his documented medical history (both in-service and after service), and it was supported by rationale. Notably, there are no medical opinions of record to the contrary. Significantly, the Veteran has not submitted, or referenced any probative medical evidence which refutes the findings of no casual connection between in-service herbicide exposure and other disabilities, e.g., peripheral neuropathy. The only evidence of record in support of this theory of entitlement consists of the Veteran's own assertions of such a relationship. As a layperson, however, the Veteran himself does not possess the necessary medical expertise to competently establish a link between Agent Orange exposure and peripheral neuropathy, especially when this disability may have first manifested decades following his Agent Orange exposure. See Jandreau, supra. In the absence of competent medical or lay evidence suggesting that the Veteran had neurological disorder in-service, entitlement to service connection for peripheral neuropathy on a direct theory of entitlement, to include as due to Agent Orange exposure, is not warranted. The Board has also considered whether service connection for peripheral neuropathy is warranted based on the manifestation of a chronic disability to a compensable degree within one year of his separation from service. Again, the first post-service evidence of neurological symptoms is demonstrated in 1990, many years after separation from service. Moreover, as the Veteran has never asserted in-service onset with continued symptomatology after service, the theory of continuity of symptomatology is not for application here. 38 C.F.R. § 3.309(a); see also 3.303(b). In summary, the Board concludes that the preponderance of the evidence is against granting entitlement to service connection for peripheral neuropathy on a direct basis, a presumptive basis for a chronic disability, and on a direct or presumptive basis based on verified exposure to Agent Orange. As the evidence preponderates against the claims, the benefit-of-the-doubt doctrine is inapplicable, and service connection for disabilities of the back and the neck must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). 3. Thrombocytopenia and Leukopenia (B-12 deficiency) The Veteran has also claimed entitlement to service connection for thrombocytopenia and/or leukopenia (hereinafter "a blood disorder"). Specifically, he contends his blood disorder is directly related to in-service herbicide exposure. Unlike his claim for a sebaceous cyst, the Veteran does not assert that the blood disorder was present during service and/or continuously thereafter. Service treatment records are silent as to complaints, treatment, or diagnoses of a blood disorder. The January 1966 separation examination report reflected a negative serology test and there were otherwise no notations or findings relating to a blood disorder on the contemporaneous Report of Medical History. Following service, VA treatment records first document a diagnosis of mild thrombocytopenia and leukopenia in July 1992. VA treatment records dated from 1993 to the present show continued treatment for thrombocytopenia and leucopenia, and secondary findings related of low white blood cell counts/platelets, and B-12 deficiencies. Again, in June 2010, the Veteran underwent a VA hemic examination. Unfortunately, that examiner based his opinion on an erroneous reading of the Veteran's service dates and the pertinent VA regulations regarding herbicide exposure. A new VA examination was thus requested pursuant to the Board's 2012 remand. The Veteran underwent a new VA hemic examination in December 2012. The physician who conducted the VA examination opined there was less than a 50 percent probability that the leukopenia and/or thrombocytopenia was caused as a result of his service in Vietnam, or his herbicide exposure. While the examiner stated that he did not have a "clear etiology" for the Veteran's "very minor" thrombocytopenia, he stated that he could think of "no way to link that to herbicides or to his service in Vietnam." In terms of a current disability, the June 2010 and December 2012 VA examinations confirm leukopenia and thrombocytopenia diagnoses. The Board must deny service connection, however, for the same reasons that have been cited in connection with the skin and neuropathy disabilities, as discussed above. First, there is no evidence of a blood disorder in-service, and the Veteran himself has not asserted the existence of such disability in service. As noted above, service treatment records were silent as to complaints, treatment, or diagnoses relating to a blood disorder. The Veteran has likewise never asserted a continuity of blood disorder-related symptomatology since service. Moreover, leukopenia and thrombocytopenia were not diagnosed until 1992, almost 26 years after separation from service. With respect to nexus, the only medical opinion of record is against the Veteran's claim for service connection of a blood disorder. Indeed, the December 2012 VA examiner opined that the Veteran's leukopenia and thrombocytopenia were less likely related to herbicide exposure. Indeed, an award of VA benefits may not be based on the possibility of a link between the blood disorders and herbicide exposure but rather based on the medical probability that such a relationship exists. See 38 C.F.R. § 3.102 (2012). The Board finds the VA examiner's opinion to be of great probative value as it was based on examination of the Veteran, his documented medical history (both in-service and after service), and it was supported by a rationale. Notably, there are no medical opinions of record to the contrary. Significantly, the Veteran has not submitted, or referenced any probative medical evidence which refutes the findings of no casual connection between in-service herbicide exposure and other disabilities, e.g., blood disorders. In addition, the Veteran's own lay contentions regarding a link between his blood disorders and herbicide exposure cannot establish service connection, as the Veteran does not possess the medical expertise to competently render such a medically complex opinion. See Jandreau, supra. In short, the Board concludes that the preponderance of the evidence is against granting entitlement to service connection for leukopenia and thrombocytopenia on a direct basis (to include as directly related to Agent Orange exposure) or on a presumptive basis based on verified exposure to Agent Orange. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection for a prostate disability must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. 4. Renal Cysts The Veteran has also claimed entitlement to service connection for renal cysts. Again, he asserts that this disability is directly related to in-service herbicide exposure. Unlike his claim for a sebaceous cyst, the Veteran does not assert that the renal cysts were present during service and/or continuously thereafter. See Hearing Transcript, p. 28. Service treatment records are silent as to complaints, treatment, or diagnoses of renal cysts or kidney problems. The Veteran's separation examination reflected a normal genitourinary system, as well as a negative albumin urinalysis. The Veteran denied having frequent or painful urination, sugar or albumin in the urine, blood in urine, or kidney or gall bladder stones on his Report of Medical History. Following service, VA treatment records first document a small renal cyst in December 1990. VA treatment records dated from 1997 to the present reflect continued treatment for bilateral renal cysts in the kidneys. As noted above, in June 2010, the Veteran underwent a VA general examination. Renal cysts were noted to have been present since 1990. Unfortunately, that examiner based his opinion on an erroneous reading of the Veteran's service dates and the pertinent VA regulations regarding herbicide exposure. A new VA examination was thus requested pursuant to the Board's 2012 remand. The Veteran underwent a new VA kidney examination in December 2012. The physician who conducted the VA examination opined that the Veteran's simple renal cysts were less likely than not related to herbicide exposure in-service, and more likely related to the increased incidence as individuals age. In so finding, the examiner cited to medical literature review which indicated that renal cysts were commonly observed in normal kidneys with an increasing incidence as individuals age. The examiner further noted that the Veteran was 48 years old when the first renal cyst was diagnosed, and that it was more than 20 years after active duty. He stated that he was unaware of any medical literature linking herbicide exposure to the development of simple renal cysts. In terms of a current disability, the June 2010 and December 2012 VA examinations confirm a renal cyst diagnosis. The Board must deny service connection, however, for the same reasons that have been cited in connection with the skin, blood disorder, and neuropathy disabilities, as discussed above. First, there is no evidence of renal cysts or kidney problems in-service, and the Veteran himself has not asserted the existence of such disability in-service. As noted above, service treatment records were silent as to complaints, treatment, or diagnoses relating to a kidney disability, and the urine tests taken upon separation in 1966 were negative for albumin and any other kidney-related problems. The Veteran has likewise never asserted a continuity of kidney related symptomatology since service. Moreover, renal cysts were not diagnosed until 1990, almost 24 years after separation from service. In addition, the only medical opinion of record is against the Veteran's claim for service connection for renal cysts. Indeed, the December 2012 VA examiner opined that the Veteran's renal cysts were not related to herbicide exposure. Rather, he attributed them to age. The Board finds the VA examiner's opinion to be of great probative value as it was based on examination of the Veteran, his documented medical history (both in-service and after service), and it was supported by a rationale. Notably, there are no medical opinions of record to the contrary. Significantly, the Veteran has not submitted, or referenced any probative medical evidence which refutes the findings of no casual connection between in-service herbicide exposure and other disabilities, e.g., renal cysts. In addition, the Veteran's own lay contentions regarding a link between his renal cysts and herbicide exposure cannot establish service connection, as the Veteran does not possess the medical expertise to competently render such a medically complex opinion. See Jandreau, supra. In short, the Board concludes that the preponderance of the evidence is against granting entitlement to service connection for renal cysts on a direct basis (to include as directly related to Agent Orange exposure) or on a presumptive basis based on verified exposure to Agent Orange. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection for a kidney disability must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. ORDER Entitlement to service connection for a sebaceous cyst, diagnosed as epidermal inclusion cyst, to include as secondary to herbicide exposure, is denied. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure, is denied. Entitlement to service connection for leukopenia and/or thrombocytopenia, to include as secondary to herbicide exposure, is denied. Entitlement to service connection for a kidney disability, diagnosed as renal cysts, to include as secondary to herbicide exposure, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs