Citation Nr: 0813794 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-21 644 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for restless leg syndrome. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, J.M. and A.D. ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from November 1953 to November 1955. The matter of reopening a claim for service connection for restless leg syndrome comes before the Board of Veterans' Appeals (Board) on appeal from February and December 2006 rating decisions of the RO in Cleveland, Ohio, which reopened and denied the claim. The issue of service connection for PTSD arises from an August 2002 rating decision. The veteran testified before a Decision Review Officer at January 2003 and July 2004 hearings on both issues and before the undersigned at an August 2007 hearing on the matter of service connection for restless leg syndrome, alone. All transcripts have been associated with the file. The RO granted the veteran's petition to reopen his restless leg syndrome claim in the December 2006 rating decision. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Board concludes that new and material evidence has indeed been associated with the claims folder. The veteran's claim of service connection for restless leg syndrome was denied by an August 2002 rating decision on the basis that the disability was not incurred in service. The veteran attempted to appeal; however, his substantive appeal was not timely. The veteran was notified of the failure to perfect in a November 2004 letter. He then initiated his current petition. New and material evidence specifically addressing the issue of incurrence has been submitted in the form of a February 2006 statement from the veteran's brother that the veteran had the condition when he returned home from the service in 1955. See 38 C.F.R. § 3.307, 3.309 (2007) (Service connection for organic diseases of the nervous system may be established based on a legal "presumption" by showing that such manifested itself to a degree of 10 percent or more within one year from the date of separation from service.) For the purpose of reopening the claim, the Board will presume the credibility of the aforementioned evidence. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the claim is reopened. See 38 C.F.R. § 3.156(a). The Board will proceed to review the decision on the merits. As such, the Board finds that any error related to the VCAA on that claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran has a current diagnosis of restless leg syndrome; and there is no medical evidence relating such to any event or injury in service or any applicable presumptive period thereafter. CONCLUSION OF LAW The veteran's restless leg syndrome was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the rating decision which reopened and considered the veteran's claim on the merits, a letter dated in September 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The September 2006 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. The notice provided also addressed the evidence upon which disability ratings and effective dates are to be assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the only evidence indicating the veteran "suffered an event, injury or disease in service" is hearsay from the veteran's friends. The veteran's direct testimony is that the problem began after his discharge. His friends' statements are outweighed by the remaining evidence, as discussed below. There is no reasonable possibility that a medical opinion would aid in substantiating the veteran's claim since it could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The veteran contends that, upon his separation from service in November 1955, he began suffering from restless leg syndrome. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The veteran's VA treatment records show that the veteran has a current diagnosis of restless leg syndrome. The Board is satisfied by the evidence of current disability. See id. The veteran's restless leg syndrome has not been shown to have begun during service. The veteran has testified in January 2003 before a Decision Review Officer and in August 2007 before the undersigned. At both hearings, he testified that his restless leg problem began after his discharge, when he returned home. The veteran also submitted a January 2006 statement to the effect that the problems began during service. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As the veteran's statements clearly contradict each other, the Board finds that the veteran is not credible. The Board turns to the remaining record for evidence of inservice incurrence of restless leg syndrome. The veteran's service medical records do not show complaints, treatment or diagnosis for restless leg or any other neurological problem. The Board is aware that the veteran's service medical records were damaged by fire. The extant portions of the records appear to be the relevant portions containing physical examination results. The Board has also considered the statements submitted by the veteran's brother, sister and his friends J.M. and A.D. The veteran's brother submitted a January 2003 statement that the veteran moved in with him in 1957 and that he discussed the restless leg problem at the time. The veteran's brother indicated in February 2006 that his brother had his restless leg problem after returning from service in 1955. The veteran's sister also submitted a January 2003, indicating that the veteran has had restless legs for many years. She does not indicate that the problem began during service. The veteran's friends, J.M. and A.D., have testified and submitted statements to the effect that the veteran has had the condition for many years as a result of service. The Board is left with an unreliable history. The veteran's testimony and statements are contradictory. The remaining statements from his brother and sister do not place the onset of restless legs to service. The Board notes that both J.M. and A.D. met the veteran many years after his separation from service and that their knowledge is dependent on what the veteran has told them. As he has drawn questions to his own credibility, the Board cannot reasonably rely on their statements. The Board is left with a record that points to onset of restless legs sometime in the 1950's, but no evidence from credible sources or objectively from service medical records that indicate that the problem began during service. The Board finds that the preponderance of the evidence is against a finding that the veteran incurred or aggravated restless leg syndrome during service. The Board concludes that service connection is not warranted on a direct basis. See Hickson, supra. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and other organic diseases of the nervous system become manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the veteran has submitted statements and testified that his restless leg syndrome bothered him on his separation from service, there is no evidence to show that the symptoms could have reached a compensable level within one year of separation under the Diagnostic Codes rating diseases of the nervous system. See 38 C.F.R. § 4.124a. The veteran cannot benefit from the presumption. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for restless leg syndrome is denied. REMAND The veteran filed a claim for service connection for PTSD in October 2000. That claim was denied in an August 2002 rating decision. The veteran filed a timely Notice of Disagreement in September 2002. The RO issued a February 2004 Statement of the Case (SOC). The veteran perfected an appeal of the PTSD issue with an April 2004 Substantive Appeal. The RO has taken no additional development or adjudication of the issue since that time. The RO received additional evidence regarding his PTSD in his VA treatment records, associated with the record in October 2006. The law requires that the RO consider the evidence added to the record since the November 2004 Supplemental Statement of the Case, re- adjudicate the claim, and issue an appropriate SSOC. 38 C.F.R. §§ 19.31, 19.37 (2007). Accordingly, the case is REMANDED for the following action: The RO should initially consider whether additional stressor development is warranted given the veteran's submission of a PTSD stressor questionnaire. Following any necessary development under the VCAA, the RO should readjudicate the PTSD claim on the merits. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs