Citation Nr: 1337897 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-10 650 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to March 1970, to include service in the Republic of Vietnam from April 1969 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO, inter alia, denied service connection for peripheral neuropathy of the arms and legs, to include as due to exposure to herbicides. In June 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2006. In March 2009, the Board denied service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy of the bilateral arms and legs), to include as due to exposure to herbicides. In April 2009, the Veteran filed a motion for reconsideration of the Board's decision. See 38 C.F.R. §§ 20.1000, 20.1001 (2009). In October 2009, the motion for reconsideration was granted, by a Deputy Vice Chairman of the Board. In November 2009, the Board vacated its March 2009 decision and entered a new decision denying the Veteran's claim. The Veteran appealed the Board's November 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Memorandum Decision, the Court vacated the Board's denial of the claim for service connection, and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. In March 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claim (as reflected in an October 2012 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. In January 2013, the Board again remanded the claim on appeal to the RO, via the AMC, for further action, to include obtaining a VA addendum opinion. After taking further action, the AMC continued to deny the claim (as reflected in a March 2013 SSOC and returned this matter to the Board for further appellate consideration. In March 2013 and April 2013, the Board received additional evidence from the Veteran, to include lay statements and medical literature. In May 2013, the Board again remanded the claim on appeal to the RO, via the AMC, for further action, to include an additional VA addendum opinion. After taking further action, the AMC continued to deny the claim (as reflected in an August 2013 SSOC) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. As the Veteran had active service in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicide agents, including Agent Orange, during such service. 3. The disability claimed as peripheral neuropathy has been diagnosed as peroneal nerve palsy with left foot drop, but has not been shown to meet the regulatory definition of early onset peripheral neuropathy-a disease recognized by VA's Secretary as associated with herbicides exposure. 4. While the Veteran asserts that he had numbness and tingling in his extremities during service, peroneal nerve palsy with left foot drop was not shown in service or for many years thereafter, and the most persuasive medical opinion evidence on the question of whether there exists a medical relationship, or nexus, between the diagnosed disability and service, to include any herbicide exposure therein, weighs against the claim. CONCLUSION OF LAW The criteria for service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy), to include as due to herbicide exposure, are not met. 38 C.F.R. §§ 1110, 1116, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013); See 78 Fed. Reg. 54,763-54, 766 (September 6, 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the RO sent the appellant pre-rating letters dated in October and December 2004. The letters provided notice to the appellant regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letters specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The May 2005 RO rating decision reflects the RO's initial adjudication of the claim after issuance of the October and December 2004 letters. The Board notes that the RO generally notified the Veteran regarding VA's assignment of disability ratings and effective dates in a May 2006 post-rating letter. However, the timing of this notice-after the last adjudication of the claim-is not shown to prejudice the Veteran. Because the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, private medical records from Wellington Regional Medical Center, VA outpatient treatment records dated from October 2004 to August 2013, to include a report of a February 2005 VA Agent Orange registry examination; as well as the report of VA examination in April 2012, and VA addendum opinions in January 2013 and August 2013. Also of record and considered in connection with the appeal is medical literature submitted by the Veteran, along with various written statements provided by the Veteran's family members, the Veteran, and by his representative, on his behalf. No further RO action on this matter, prior to appellate consideration, is warranted. The Board notes in particular, that there has been substantial compliance with the actions requested in the most recent Board remand of May 2013. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as organic diseases of the nervous system which develop to a compensable degree (10 percent for such disease) within a prescribed period after discharge from service ([one year for organic diseases of the nervous system]), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, organic diseases of the nervous system may be subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). In this case, the Veteran's service record reflects his service in the United States Marine Corps in the Republic of Vietnam during the Vietnam Era. Thus, his exposure to Agent Orange is presumed. Id. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e) (2013). Under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma- Parkinson's disease; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The Board observes that effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents. The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA amended §§ 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." VA also removed Note 2 to § 3.309(e), which had required, 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. Under the amendments, peripheral neuropathy will 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 no longer needs to be transient. This amendment applies to claims received by VA on or after September 6, 2013; and to claims pending before VA on that date. As the Veteran's current claim was pending before VA on September 6, 2013, the amendment applies in this case. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57, 586, 57,589 (1996), and 67 Fed. Reg. 42,600, 42,608 (2002). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2 ,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Considering the pertinent evidence in light of the above, the Board finds that service connection for a neurological disability must be denied because there is no competent probative evidence that there exists a medical relationship between the Veteran's later diagnosed peroneal nerve palsy with left foot drop and his military service, to include any herbicide exposure therein. In connection with this appeal, the Veteran has asserted that he experienced numbness and tingling in his arms and legs during his military service and that he reported these symptoms to the medic in his unit. In various statements, he has said that he was under combat conditions at the time and that there is no record that he complained of these symptoms. He also stated that he was told that his symptoms were likely from sleeping on the ground and wearing his boots too long. In a November 2004 statement, the Veteran said that the numbness and tingling went away for a while but then returned in the late 1970s or early 1980s, and that he has had problems since then. The Veteran's service treatment records are unremarkable for any complaints of numbness or tingling in his extremities, and there are otherwise no findings or diagnoses of, or pertinent to, a neurological disability. The report of the March 1970 discharge physical examination reflects that the neurological evaluation was normal. There is also no evidence of any medical treatment for these symptoms within one year of when the Veteran was last presumed exposed to herbicide agents during his service in Vietnam. Private medical records from Wellington Regional Medical Center reflect that the Veteran had a subacute right cerebral infarct (i.e., a stroke) in September 1997. A neurologic evaluation revealed deep tendon reflexes were 2+ in all extremities and muscle strength was 5/5. There was sensory deficit in the right face, but no motor deficit observed. Residual hemiparesis was noted on the discharge summary. VA treatment records dated from October 1997 to October 2004 include December 1997, March 1998, August 2003, and October 2004 records that contain no neurological findings beyond those attributed to the Veteran's cerebrovascular accident in September 1997. A March 1998 VA neurological consultation reflects that the Veteran reported double vision, following his stroke. He was fitted with prisms which, he reports, have relieved the problem. The Veteran denied all other common neurological symptoms. An October 2004 VA outpatient treatment record reflects that the Veteran complained of a 20-year history of left foot drop. He expressed his belief that the left foot drop was due to Agent Orange exposure. On neurological evaluation, there were no focal deficits and sensory was intact. The report of the February 2005 VA Agent Orange registry examination reflects that the Veteran complained of a history of numbness in his legs from the knees down and foot drop since the early 1970s. On physical examination, pedal pulses were 2+ bilaterally; deep tendon reflexes were symmetrical; sensory was intact to light touch but decreased vibration. Left ankle joint flexion was 3/5 and toe dorsiflexion was 2/5. The diagnosis was left foot drop, peroneal nerve palsy. In his February 22, 2006 (received by VA in March 2006), substantive appeal, the Veteran stated that his "peroneal dysfunction which is peripheral neuropathy started while he was in Vietnam between April 1969 and March 1970." The report of the April 2012 VA neurological examination reflects that the Veteran reported that when he was 21 years old he started experiencing numbness and burning sensation in his toes and the bottom of his feet which started in the left foot and then went to the right foot months later. He indicated that since that time his symptoms have progressively worsened and he started noticing weakness in his legs in the 1970's. The Veteran reported that he started tripping over his left great toe. Physical examination of the extremities revealed the following abnormalities: muscle strength testing shows left ankle plantar flexion and dorsiflexion was 3/5; left ankle deep tendon reflex was absent; decreased sensation to both upper and lower extremities; the Veteran displayed an abnormal gait, described as high stepping, as well as left foot drop. The VA physician, Dr. L.V.V. opined that the Veteran had neuropathy of his lower extremities, and that it was as least as likely as not related to service. In support of the opinion, the physician noted that the Veteran started having numbness and a burning sensation in the toes and bottom of the feet when he was 21 years old (i.e., during service), and that it had been progressively worsening ever since. On January 2013 VA addendum opinion, the VA medical examiner, Dr. J.L.H. noted that the claims file was reviewed. The physician opined that it was less likely than not that the Veteran's neurological disability was incurred in or the result of his military service. In support of the opinion the examiner indicated that the Veteran was seen in neurology consultation in February 25, 1998, and denied any symptoms except those related to his stroke and it did not include tingling and numbness of the legs or foot drop. There were no sensory or motor deficits on exam at that time. The examiner noted that the Veteran had a myriad of visits to his primary care physician and there appears to be no mention of foot drop until 2004. The examiner observed that included in the case file was a handwritten statement dated February 22, 2006 that stated that the Veteran's "peroneal dysfunction" began in April 1969 to March 1970. He noted that when the Veteran saw his primary care physician in October 2004, he stated there were no gait problems for one year. The examiner then noted that subsequently, the Veteran said that he had foot drop for 20 years before the stroke. The examiner noted that it is hard to understand how the Veteran could have foot drop for 20 years before the stroke, and not mention it to his primary care physician or even his neurologist during those years. The medical examiner also stated that the peroneal nerve palsy (foot drop) has a myriad of causes. The examiner noted that foot drop can be idiopathic (no cause found) and that it is extremely unlikely that Agent Orange herbicide exposure would cause neurologic damage, disappear and then reappear as foot drop years later. Furthermore, the examiner noted, only acute and subacute nerve damage is related to Agent Orange exposure and there is no evidence of foot drop at that time, nor was it reported on the Veteran's separation exam or shortly thereafter. In March 2013, the Board received from the Veteran additional evidence, consisting of his own lay statements addressing new contentions that his all of his neurological symptoms did not disappear, just the numbness went away for a while after service and then returned; an April 2012 lay statement from his wife that reports that she observed over the past 30 years the Veteran tripping and stumbling on stairs, and his foot slapping the floor; an April 2012 lay statement from his brother that states the Veteran reported to him that he experienced numbness in his extremities; and medical literature from the National Institute of Health (NIH) addressing peripheral neuropathy, specifically, that the symptoms of peripheral neuropathy may be mild and "come and go" or slowly progress over many years. The Veteran also requested that the additional evidence be reviewed before an addendum opinion was rendered. In a March 2013 statement, received by the Board in April 2013, the Veteran essentially reiterated his contentions that he has experienced continuous neurological symptomatology since service. He stated that he made several complaints to his providers over the years relating to his burning feet, numbing of the arms, painful foot, his big toe "hanging", and tripping and stumbling. As the January 2013 examiner (Dr. J.L.H.) provided an addendum opinion without the benefit of reviewing the additional evidence, the Board found it necessary to remand the issue for an additional opinion. On August 2013 VA addendum opinion, Dr. J.L.H. again noted that the claims file, to include the new evidence, was reviewed and opined that it was less likely than not that the Veteran's neurological disability was incurred in or as a result of his military service. At the outset, the examiner noted the criteria for neuropathy as secondary to Agent Orange exposure. The examiner also noted that a part of the criteria was going to change soon. See page 3 of the August 2013 report. In support of the opinion, the examiner indicated that in order for foot drop to be 10 percent disabling, the condition must be not mild, but moderate. The examiner noted that it was not feasible that the Veteran could have had a "moderate" foot drop in the Marines and be able to function in line of duty. Furthermore, the examiner found that it was not feasible that if the Veteran had a moderate foot drop, that he would not have reported that and had that addressed. The examiner noted that tingling and numbness alone would not have qualified for moderate without some sort of disability associated with it. The examiner also addressed the medical literature submitted by the Veteran from NIH. He indicated that while it was true that neurological symptoms can come and go, it would be extremely uncommon for the symptoms to go away for 8-10 years, as the Veteran has reported. Finally, the examiner noted that there is no dispute that the Veteran has a neurological disability. He indicated, however that there is no documentation of peripheral neuropathy with foot drop prior to 2004 which is 34 years after the Veteran served in Vietnam. The examiner again noted that the Veteran had numerous opportunities to complain about foot drop to a myriad of physicians over the years, but he never did per the available treatment records. The examiner noted that treatment records of the Veteran's hospitalization in the fall of 1997 do not contain any evidence of symptoms consistent with peripheral neuropathy/foot drop. The first documented complaint of neuropathic symptoms do not occur until 2004. First addressing the matter of presumptive service connection based on presumed herbicides exposure in Vietnam, the Board notes, at the outset, that the medical evidence is not entirely clear as to whether the Veteran actually has peripheral neuropathy. Even if-given the most recent examiner's comments-the Board was to assume (for purposes of this analysis only), without deciding, that the Veteran's diagnosed peroneal palsy with foot drop is a type of peripheral neuropathy (as the Veteran urges), the record does not support an award of service connection on this a basis, The Board observes that early-onset peripheral neuropathy is among the diseases presumed to be associated with herbicide exposure and that the neuropathy must have become manifest to a degree of 10 percent or more within the Veteran's last in-service exposure. The Veteran's own description of his symptoms does not meet that definition. Here, the Veteran initially contended that he had symptoms of numbness and tingling during service that went away and then returned in the late 1970s or early 1980s and that he has had these problems continually since then; more recently, he asserted that the symptoms never really went away. Nonetheless, even if the Veteran's assertions regarding the onset of his symptoms are accurate, his current neurological disability does not fall into the regulatory definition of early onset neuropathy that manifests to a degree of 10 percent or more and therefore, service connection for this disability cannot be presumed based on herbicide exposure. See 78 Fed. Reg. 54,763-54, 766 (September 6, 2013). Indeed, as noted, the Veteran's service treatment records, to include his service discharge examination report are devoid of any neurological symptomatology- as there were no complaints and clinical evaluation of his extremities was normal. As previously noted, the Veteran may still establish service connection for his disability by showing that the disorder is in fact causally linked to Agent Orange exposure. In this case, however, the record does not provide any other basis for an award of service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy). The first diagnosis of any neurological disability-peroneal nerve palsy with left foot drop-was during a February 2005 VA examination, over 35 years after the Veteran was discharged from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, despite the Veteran's assertions that he has had these symptoms continually since the late 1970s or early 1980s, there is no documented evidence of this claimed disability until February 2005. Moreover, the September 1997 neurological examination after his stroke did not note any peroneal nerve palsy or left foot drop; the March 1998 VA neurological consultation did not note any peroneal nerve palsy or left foot drop; and on October 2004 neurological examination, there were no focal deficits and sensory examination was intact. The Board finds that the medical evidence simply does not support continuity of symptomatology since service or even since the late 1970s or early 1980s, as asserted by the Veteran. As for the Veteran's, his wife's, and brother's lay assertions current regarding continuity of symptomatology, the Board finds that such assertions in this regard-advanced in connection with the current claim for monetary benefits-simply are not deemed credible. Impacting the statements' credibility is the fact that the service treatment records are devoid of a neurological disability, and on service separation, neurological examination was normal. In a November 2004 statement, the Veteran himself reported that he experienced numbness and tingling in his extremities that essentially disappeared for a while but then returned in the late 1970s or early 1980s. It is also noteworthy that the claim for service connection for the neurological disability at issue was filed well over 35 years after service in 2004, and that the private and VA clinical reports of record dated prior to the February 2005 VA Agent Orange examination revealed no findings or complaints relating the existence of a neurological disorder, characterized as peroneal palsy with foot drop. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The overall absence of relevant findings or complaints in these reports, to include the fact that the examination of the extremities in connection with VA outpatient treatment in March 1998 did not disclose or reference history of peroneal palsy with foot drop, are factors that tend to weigh against any current assertions of continuous symptoms, and, ultimately, the claim. As for the medical opinions addressing the etiology of current disability, the above-cited evidence reflects that the record contains conflicting medical opinions on the question of whether the Veteran's current neurological disability is related to service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes, however, it may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board notes, however, a medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board assigns little probative value to the April 2012 VA opinion which the examiner noted, based on the Veteran's report of numbness and burning in service and progressively worsening since service, that it was as least as likely as not that the Veteran's neurological disorder was related to service. Significantly, as previously noted, the evidence of record does not support the premise that the Veteran has suffered continuity of neurological symptomatology ever since service. To the contrary, by the Veteran's own description, his symptoms essentially disappeared for a time after service, and then returned in the late 1970s or early 1980s. See Statement in Support of Claim, dated in November 2004. In addition, the examiner did not discuss the medical significance, if any, of the clinical evidence of record. No mention was made of the Veteran's March 1970 service separation examination, for example, the report of which reflects that the Veteran's upper and lower extremities and neurological system were then found to be normal. Nor was there any mention of records of the Veteran's private hospitalization in September and October 1997, which, while showing that the Veteran underwent a full physical and neurological examination, are devoid of any findings relative to peroneal nerve palsy or other neurological disorder of the extremities; or of VA treatment records dated in December 1997, March 1998, August 2003, and October 2004, which contain no neurological findings beyond those attributed to a cerebrovascular accident in September 1997. The Board finds that the medical opinions reflected in the January 2013 VA addendum, and most recently, the August 2013 VA addendum-to the effect that the Veteran's current neurological disorder was unrelated to service, to include in-service Agent Orange exposure-are the most probative medical opinions on the question of medical etiology of current disability. The physician rendering both opinions conducted an in-depth review of the Veteran's treatment history and claims file (to include the Veteran's various statements and medical literature from NIH), described the symptoms, and provided reasoned analyses as to why the current neurological disorder was unrelated to service, to include Agent Orange exposure. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Additionally, in the most recent August 2013 opinion, the examiner acknowledged the upcoming change in the regulation relevant to peripheral neuropathy and Agent Orange exposure. Further, the examiner was a VA primary care examiner, and the Board may assume the examiner is competent See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their official duties). The Board finds the January and August 2013 VA examiner's addendum opinions on the matter of nexus highly probative. Furthermore, as for any direct assertions of the Veteran , his wife, brother and/or representative that there exists a medical nexus between the current neurological disability and service-the matter upon which this claim turns-the Board emphasizes that such is a complex medical matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his wife and brother are not shown to be other than laypersons without appropriate training and expertise, nor are they competent to render a probative (i.e., persuasive) opinion as to the etiology of any currently diagnosed neurological disorder; as such, these lay assertions have no probative value. See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). For all the foregoing reasons, service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy), to include as due to herbicide exposure, must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The Board observes, however, that, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for peroneal nerve palsy with left foot drop (claimed as peripheral neuropathy), to include as due to herbicide exposure, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs