Citation Nr: 1750117 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 11-26 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for restless legs syndrome (RLS). 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 2004 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction currently resides at the VARO in St. Petersburg, Florida. The Veteran's representative raised the issue of total unemployability in his informal hearing presentation dated October 2017; however the Board notes that the Veteran was granted TDIU in a June 2015 rating decision by the RO. The issue of service connection for migraines is no longer before the Board as the Appeals Management Center granted service connection at 10 percent in a September 2016 rating decision. The issue of an increased rating for migraines has been raised by the record in an informal hearing presentation of October 2017 and has been adjudicated by the Agency of Original Jurisdiction (AOJ) as referenced in a supplemental statement of the case dated February 2017. However, a review of the record shows that the Veteran has not yet submitted a Notice of Disagreement (NOD) or Substantive Appeal (e.g., VA Form 9 or equivalent statement) subsequent to those decisions. See 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302 (2016). That is, she has not appealed either the initial rating or effective date assigned for her service-connected migraines. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues). Thus, the issue of a higher initial rating for service-connected migraines is not on appeal before the Board. FINDINGS OF FACT 1. Obstructive sleep apnea is etiologically related to an in-service injury, event, or disease. 2. Restless leg syndrome is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for direct service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 2. The criteria for presumptive service connection for restless legs syndrome have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the Board is granting the service connection issues in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide this claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, such as arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more disabling within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). a. Sleep Apnea At the outset, sleep apnea is not one of the enumerated chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on chronic symptoms in service and continuous symptoms since service do not apply here for that particular disorder. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). However, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a), may still qualify for service connection under the three-element test for disability compensation listed in 38 C.F.R. § 3.303(a). Walker, 708 F.3d at 1338-39. VA neurological and primary care treatment notes dated from 2008 to 2017 reveal a current diagnosis for sleep apnea. Moreover, there is also circumstantial evidence of a nexus to her period of active duty service from March 2004 to November 2007. In particular, in a July 2008 VA treatment note, the examiner reported that the Veteran's husband was complaining about her loud snoring and the Veteran herself reported often waking due to a choking sensation. The Veteran underwent a sleep study in October 2008, within one year of release from active duty, when she was diagnosed with sleep apnea and prescribed a continuous positive airway pressure (CPAP) machine. In addition, the following November 2008 VA examination stated the Veteran had been diagnosed with sleep apnea in the October 2008 sleep study. The Veteran underwent another sleep study in May 2013 which resulted in another diagnosis of sleep apnea requiring a CPAP. An August 2016 VA examiner noted that the Veteran reported symptoms of sleep apnea during service around 2005 and that the Veteran was subsequently diagnosed with sleep apnea in 2008. The examiner notes that the Veteran's treatment records show consistent complaints regarding sleep apnea symptoms throughout, including a February 23, 2011 "chronic problem" listing. The examiner stated that it would be mere speculation to opine whether the Veteran's sleep apnea is caused or aggravated by her military service, due to the STRs being silent for treatment or clinical suspicion of sleep apnea. The STRs do note sleep problems, but the VA examiner notes that these sleep problems mentioned in the Veteran's separation report in October 2007 are attributed to the Veteran's mental health concerns. The Board will note that the Veteran is service connected for PTSD since November 11, 2007, the month she left active duty, and is currently rated at 50 percent for PTSD. Resolving doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that competent medical evidence, as well as the Veteran's competent and credible lay statements about her in-service and post-service symptoms, and the fact that she was diagnosed with sleep apnea within one year of separation from active duty, all support a finding that the Veteran's sleep apnea began in service and have persisted since that time. Accordingly, service connection for sleep apnea is warranted. b. Restless Legs Syndrome The Veteran dates the onset of her current restless leg syndrome to her period of military service, or within one year thereafter. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish presumptive service connection as a chronic disease, an organic disease of the nervous system (such as restless legs syndrome) must manifest itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). VA regulation specifies that for presumptive service connection based on the one-year presumption, the factual basis may be established by medical evidence, competent lay evidence, or both. See 38 C.F.R. § 3.307(b). The question for the Board is whether the Veteran's current diagnosis of restless leg syndrome either began during active service, or within one year of service, or is otherwise etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that current restless leg syndrome is etiologically related to the Veteran's active service, by way of the one-year presumption for chronic diseases. In particular, the Veteran has credibly reported that her restless legs condition began during active service when she received treatment for leg pain and complained of sleep problems. VA neurological and primary care treatment notes dated from 2008 to 2017 reveal a current diagnosis for restless leg syndrome. Moreover, there is also circumstantial evidence of a nexus to her period of active duty service from March 2004 to November 2007. The Veteran underwent a sleep study in October 2008, within one year of release from active duty, when she was diagnosed with severe PLMD (periodic leg movement disorder.) In addition, the November 2008 VA examination stated the Veteran had been diagnosed with RLS in the October 2008 sleep study. The examiner answered the questions of whether the Veteran had RLS prior to or during active service as "no." On the issue of the one-year presumption for chronic diseases, the Board finds it worthy to note that although the listed "chronic" diseases include "other organic diseases of the nervous system," there is not evidence restless leg syndrome constitutes an organic disease of the nervous system. However, the Board will note that the medical diagnostic code for restless legs (ICD-9 333.99) is listed under "Hereditary and Degenerative Diseases of the Central Nervous System (330-337)," whereas, periodic limb movement disorder (ICD-9 327.51) is listed under "Organic Sleep Related Movement Disorders." As the Veteran's involuntary leg movement condition has been diagnosed as both RLS and PLMD, the medical and lay evidence supports service connection for restless leg syndrome based on the one-year presumptive provisions for a chronic condition as the minimum rating is 10 percent for mild neuralgia, as an analogous rating for restless legs syndrome. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309, 4.71a, Diagnostic Code 8799-8720. ORDER Entitlement to service connection for restless legs syndrome (RLS) is granted. Entitlement to service connection for sleep apnea is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs