Citation Nr: 1333868 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-16 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for heart disease, to include as due to in-service herbicide exposure. 2. Entitlement to service connection for bilateral lower extremity neuropathy, to include as due to in-service herbicide exposure or due to diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from September 1951 to May 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of February and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In June 2010, a hearing was held before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the (A)VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ explained the issue that is before the Board. The representative and the AVLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Procedural History This case was brought before the Board in August 2010 and August 2011, at which times the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) for further development. The case returned to the Board in November 2012, at which time the Board issued a decision denying the claims on appeal. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in May 2013, issued an order granting a Joint Motion for Remand (Joint Motion), vacating the Board's November 2012 decision and remanding the case for additional consideration. The case is once again before the Board for appellate review. FINDINGS OF FACT 1. The competent and credible evidence of record does not support a finding that the Veteran served within the Republic of Vietnam or was otherwise exposed to herbicides while serving on active duty. 2. A heart disability was not manifested during active service, and organic heart disease was not manifested within one year of service discharge. Any current heart disability is not otherwise etiologically related to the Veteran's active service. 3. Peripheral neuropathy of the lower extremities was not manifested during active service or within one year of service discharge. Any current peripheral neuropathy of the lower extremities is not otherwise etiologically related to the Veteran's active service or to a service-connected disability. CONCLUSIONS OF LAW 1. A heart disability was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Peripheral neuropathy of the bilateral lower extremities was not incurred in or aggravated by active service, may not be presumed to have been incurred therein, and is neither proximately due to nor aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied prior to the initial AOJ decisions through notice letters dated November 2006 and April 2008 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claims of service connection, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. To the extent the Veteran has alleged outstanding treatment and/or personnel records located at the U.S. embassy in Thailand and/or the Central Intelligence Agency, VA has contacted both of these entities requesting any evidence pertaining to the Veteran in their possession. Both responded that they do not have any records pertaining to the Veteran, and the Veteran has been notified of this fact and afforded an opportunity to submit any records in his possession. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a number of VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In particular, the July 2008 and July 2012 VA examinations are adequate for the purposes of determining service connection, as they involved a review of the Veteran's pertinent medical history and physical examination of the Veteran, and provides a competent etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In obtaining an adequate examination in July 2012 and undergoing sufficient attempts to obtain additional records, the AOJ has substantially complied with the Board's prior remands. See Stegall v. West, 11 Vet. App. 269 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis In deciding the Veteran's claim, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran claims service connection for a heart disability and peripheral neuropathy under a number of theories of entitlement. Specifically, he claims service connection for both disabilities as directly related to his active service, including on a presumptive basis due to herbicide exposure. He also claims service connection for peripheral neuropathy as secondary to diabetes mellitus. When determining whether service connection is warranted, all potential theories of entitlement - direct, presumptive, and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran's diagnosed cardiovascular disorder(s) are listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case. These provisions do not apply to the claim for peripheral neuropathy. See id. If a Veteran was exposed to an herbicide agent 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, certain disabilities, including organic heart disease and acute and subacute peripheral neuropathy, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Veterans who served within the Republic of Vietnam (i.e., stepped foot on ground) beginning January 9, 1962, and ending May 7, 1975, are presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6) (2012). With regards to serving within Vietnam, the Veteran testified in his June 2010 hearing that he supported Laos, Cambodia, and one unit in Vietnam, Da Nang, and northern Vietnam in a placed called Monkey Mountain run by the 7th Rust Rifle Squadron out of Fort Meade, Maryland. He indicated that they had taken a load of tricoethylene, methyl ethyl ketone, and Agent Orange to Da Nang in a C-78 to the Marine base, and the contents spilled in the aircraft. He recalled having breathing problems and that he collapsed and that they had to use oxygen masks to clean up the spilled liquid. He stated that in June 1968 he was hospitalized for his symptoms at the 5th Army Hospital in Bangkok, Thailand and that the hospital records were at Langley. With respect to VA's attempt to verify any herbicide exposure, the National Personnel Records Center (NPRC) informed VA they did not have personnel records for the Veteran. The record shows that the Veteran served from September 1951 to May 1974 in the U.S. Air Force in the 381 Supply Sq. (SAC). His military occupational specialty (MOS) was Inventory Management Superintendent. Additionally, both the Central Intelligence Agency (CIA) and the United States Embassy, Bangkok, Thailand, provided negative responses concerning any treatment of this Veteran in September and November 2011, respectively. There remains no official evidence of record verifying the Veteran's service in Vietnam. The Board has also considered the Veteran's lay statements regarding his service in Vietnam. Certainly, the Veteran is competent to report he traveled to Vietnam, and stepped foot on land within the country's borders. He is also competent to report he flew on a mission to Da Nang to deliver a number of chemicals, some or all of which spilled in the aircraft. Further, as an Inventory Management Superintendent, it is conceivable the Veteran would have had actual knowledge of the contents of these chemical barrels, specifically to include Agent Orange. However, in evaluating the Veteran's assertions of participating in a classified mission delivering chemicals to Vietnam, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000). In determining whether statements and evidence submitted by the Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). At critical issue in the instant case is the Veteran's credibility regarding his service within the Republic of Vietnam. Specifically, the Board observes the Veteran's statements regarding such service, including a classified mission, have been extremely inconsistent and have evolved over the course of the appeal. For instance, in his October 2006 claim for benefits, he affirmatively checked that he did not have service in Vietnam. See October 2006 VA Form 21-526, questions A15a & A15b. A statement received in April 2008 mentioned service in Iran and Germany, but gave no indication of service in Vietnam. In his substantive appeal, the Veteran stated that he participated in a number of classified missions with the CIA, including to several bases in Vietnam. He felt certain he was exposed to Agent Orange; no mention was made of having experienced a spill and subsequent clean-up of the herbicide agent. At his July 2009 Decision Review Officer hearing, the Veteran first reported the mission to Da Nang, Vietnam, during which a number of chemicals spilled, leading to breathing problems. At this hearing, the testified "I have no idea what the chemicals were...." Finally, at the June 2010 Board hearing, the Veteran testified this mission to Da Nang involved delivery of three specific chemicals, tricoethylene, methyl ethyl ketone and Agent Orange. As a fact-finding matter, the Board finds serious questions about the consistency, timing and accuracy of the Veteran's accounts to raise serious credibility issues with his statements and assertions regarding service in Vietnam or other direct exposure to Agent Orange. The Board finds it reasonable to believe the Veteran would have reported such service in his initial claim for benefits. Instead, he affirmatively denied such service. Further, the Veteran's statements regarding the nature and details of such missions are extremely inconsistent. Because of the inconsistent, contradictory nature of the Veteran's statements, in light of the evidence of record, the Board finds that they are not credible with respect to service within Vietnam. Accordingly, the Board finds that there is no credible evidence to support a finding that the Veteran served within the Republic of Vietnam or was in any other way exposed to an herbicide agent. As such, service connection for a heart disability and/or peripheral neuropathy based on the presumption due to herbicide exposure is not warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Even though the Veteran has been found not entitled to a regulatory presumption of service connection, his claims still must be reviewed to determine whether service connection may be established alternatively on a direct incurrence basis by establishing the required causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). Here, there is no disputing the Veteran has coronary artery disease and bilateral lower extremity peripheral neuropathy, as acknowledged in the prior August 2010 and August 2011 Board remands. Therefore, the determinative issue is whether the Veteran's heart disease or bilateral lower extremity peripheral neuropathy may be directly attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Concerning in-service incurrence, there is no indication in the Veteran's service treatment records showing evidence of coronary artery disease or any other diagnoses of heart disease. The absence of any relevant complaints or findings during his service is probative evidence against the notion that he had heart disease while in service, albeit not altogether dispositive of whether he did or did not. See Struck v. Brown, 9 Vet. App. 145 (1996). However, as for the Veteran's bilateral lower extremity peripheral neuropathy claim, his service treatment records do show a diagnosis of peripheral neuropathy. Specifically in July 1973, the Veteran was diagnosed with peripheral neuropathy, probably on a vascular basis but perhaps related to his chemical diabetes. At the Veteran's February 1974 separation examination, the Veteran was again diagnosed with peripheral neuropathy. Shortly after service, a July 1974 treatment records noted probable diabetic neuropathy. A May 1978 record once again documented diabetic neuropathy. This diagnosis is continued forward until May 2012, according to VA treatment records. Additionally, the Veteran's private treatment records from Dr. VinZant also note his continuous complaints of treatment for both of these disorders on appeal. An October 2009 record contains a statement that the Veteran's peripheral neuropathy is probably related to his vascular disease. As for his coronary artery disease, a July 2009 statement from Dr. VinZant indicates that viral illness, such as Q fever can cause cardiomyopathy. However, Dr. VinZant did not provide any rationale for this statement. Thereafter, an August 2009 record indicates the Veteran's has multiple risk factors for this disorder, including age, dyslipidemia, extensive tobacco abuse, and being of the male sex. The Veteran was provided a VA examination in July 2008 concerning the purported correlation between his current heart disability and his in-service contraction of Q-fever. Following a physical examination of the Veteran and review of his pertinent medical history, including service treatment records, the examiner stated that any current heart problems are less likely than not caused by or a result of Q-fever. In support of this opinion, the VA examiner noted that residuals of Q-fever in relation to cardiac disease is one of heart valve disease and, as the Veteran's ejection fraction is 60%, there is no valvular nexus to Q-fever. A second VA examination in December 2010 also found the Veteran's heart disability is not related to active service, noting the Veteran was not diagnosed with a cardiac disability in service or within one year of service discharge. Rather, the examiner identified the Veteran experiences a number of risk factors for cardiac disease, including aging, male gender, dyslipidemia and tobacco abuse. Two VA examinations were provided in March 2009 and December 2010 to address his peripheral neuropathy. However, these examinations were determined by the Board to be inadequate for the purposes of determining service connection for this disability. See generally Barr, 21 Vet. App. at 311. In July 2012, the Veteran again underwent a VA examination to determine the nature and etiology of his peripheral neuropathy. As to the determinate question of causation, the examiner determined the peripheral neuropathy is less likely than not attributable to the Veteran's military service. The examiner stated he is of the opinion that the Veteran's in-service symptomatology was restless leg syndrome, a disorder which has since been service connected. The examiner continued on to state that subjective complaints and responses to exams likely led other examiners to diagnose peripheral neuropathy. The examiner further noted that the evidence of idiopathic peripheral neuropathy was not found until the late 1980s/ early 1990s time frame. Given all of the above, including prior examinations and opinions, the examiner determined that the Veteran had onset of restless leg symptoms while still on active duty that explained his symptomatology, and not peripheral neuropathy. Additionally the Veteran's restless leg syndrome held no pathophysiologic correlation to his peripheral neuropathy, as the two were different/ separate entities. As such, there was no objective evidence of peripheral neuropathy in service. Thus, the examiner concluded, that the Veteran's restless leg syndrome had its onset in service, not the peripheral neuropathy. In deciding whether the Veteran's heart disability and/or peripheral neuropathy had its onset in active service, or is otherwise etiologically related to the Veteran's service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Initially, the Board observes there is no competent medical opinion of record linking the Veteran's peripheral neuropathy to his active service. Further, the Board finds the positive medical opinion provided by Dr. VinZant potentially linking the Veteran's heart disability to his in-service Q-fever to be of less significant probative value in comparison to the negative VA opinions. The Board again notes that Dr. VinZant provides no rationale or clinical basis for his opinion. In fact, Dr. VinZant specifically states "I am not an expert on Q fever...I do not know if [cardiomyopathy due to viral illnesses or rickettsia infections] has [been] substantiated by any studies." With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, 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). On the other hand, the July 2008 and December 2010 (for a heart disability) and July 2012 (for peripheral neuropathy) VA examiners all stated the Veteran's peripheral neuropathy and coronary artery disease are not attributable to his military service, and provided rationales for the opinions. Therefore, these VA examiners' opinions and the medical rationales of the opinions are where most of the probative value is derived, not from a mere review of the claims file, although that also is a consideration when the file contains evidence facilitating a more informed opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). For these reasons, the Board finds that the VA examiners' opinions discussed above are more probative than July 2009 conclusory statement from Dr. VinZant attributing heart disease to Q-fever. As for the peripheral neuropathy, there are no opinions providing a positive association between that disorder and the Veteran's military service. And, as indicated, the VA examiners' opinions have the proper factual foundation and predicate since they considered all medical and other evidence material to the claim. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). The Board has considered the medical treatise evidence the Veteran has submitted attempting to establish a correlation between his claimed disorders and his military service. However, this medical treatise information does not provide an etiological opinion to support the Veteran's assertions. Where a medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, an attempt to establish a medical nexus between service and a disease or injury solely by generic information in a medical journal or treatise "is too general and inclusive." Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element). Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility"). Here, though, the articles the Veteran submitted are not accompanied by any supporting medical expert opinion (at least, as mentioned, a sufficiently definitive opinion on this determinative issue of etiology). So the medical treatise evidence, alone, is insufficient to refute this VA examiner's opinions and establish the required linkage between the Veteran's coronary artery disease and his service-connected disability. See Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Regarding the question of secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 148, 158 (1998). Here, however, all VA examiners have specifically determined there is no medical evidence of a nexus (i.e., link) between the bilateral lower extremity peripheral neuropathy and the Veteran's military service. Additionally, the Veteran has not established his entitlement to service connection for diabetes mellitus, so there is simply no way to secondarily connect his peripheral neuropathy to his service by way of this disorder since it is not service connected. Velez, 11 Vet. App. at 158. See also Wallin, 11 Vet. App. at 512, and McQueen, 13 Vet. App. 237. Finally, the Board has considered the Veteran's DRO and Board hearing testimony and his written statements in support of his claims. The Veteran is certainly competent to state when he initially noticed tingling and numbness in his lower extremities. He is also competent to testify as to when he was initially diagnosed with this disorder and in what order he received his diagnoses. In addition he is competent to discuss when he was diagnosed with heart disease. However, he is not competent to attribute these disorders to either a diagnosis of diabetes, alleged exposure to Agent Orange, or his military service. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). He also is not competent to state what caused the underlying symptoms in his legs, i.e., peripheral neuropathy, restless legs syndrome, etc. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. However, the Federal Circuit Court also went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Even in other precedent cases the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of service connection, the benefit of the doubt is resolved in the Veteran's favor. However, when, as here, the preponderance of the evidence is against the claims, they must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for bilateral lower extremity peripheral neuropathy and a heart disability are denied. ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs