Citation Nr: 1800267 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-03 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a bilateral leg disability, to include Restless Leg Syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1987 to May 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge during an August 2017 videoconference hearing. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, the Veteran's claim must be remanded for additional development. VA's duty to assist includes obtaining a medical examination or opinion when an examination or opinion is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d) (2012). Furthermore, when VA undertakes to provide an examination or opinion, it must ensure that such is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion has no probative value if it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Furthermore, a medical opinion may be inadequate if the examiner does not consider the Veteran's competent reports of experiencing an illness or injury in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In an April 2013 VA examination report, the examiner opined that the Veteran's symptoms "clearly" do not represent Restless Leg Syndrome (RLS) and concluded that the Veteran has a sleep disorder due to sleep apnea and periodic limb movements during sleep. In doing so, the examiner expressly agreed with a June 2008 neurology report that drew the same conclusion. The April 2013 examination report is inadequate to decide the Veteran's claim because it focuses solely on symptoms the Veteran experiences during sleep while failing to address notations in the Veteran's service treatment records (STRs) as well as the Veteran's lay statements indicating that he experiences additional symptoms throughout the day. In addition, the examination report discounts the Veteran's longstanding diagnosis of RLS without any explanation. The Veteran's STRs indicate that the Veteran was diagnosed with RLS in 2005, and this diagnosis is noted throughout the Veteran's STRs up to the Veteran's retirement when he noted RLS on his Report of Medical History and Report of Medical Assessment in February 2012. Notably, in July 2006, the Veteran reported experiencing symptoms while he sits still and that his symptoms are alleviated by riding a bike, but unaffected by rubbing or taking hot showers. In addition, the Veteran's July 2005 Report of Medical Examination notes a history of "shaky legs," and a May 2008 treatment note describes the Veteran's symptoms as consistent with RLS. These notations contradict the June 2008 neurology report (cited in the April 2013 VA examination report) that stated the Veteran has no history of an unpleasant sensation in the legs at any point in time during the day, and no history of any form of RLS. Furthermore, at his August 2017 hearing, the Veteran confirmed that he was diagnosed with RLS in or about 2004 or 2005 and that he continued to experience similar symptoms when he left service. He reported that six months prior to the hearing, he experienced tingling and numbness in his legs that became so severe that it prevented him from sleeping. He further explained that, during the day, he experiences a tingly sensation or prickly pain in his legs that increases throughout the day and gets worse when he sits still. Based on the foregoing, this claim must be remanded for a new examination because the April 2013 VA examination report is based on inaccurate facts and it fails to consider the Veteran's lay statements about daytime symptoms that the Veteran confirmed and expanded upon in his August 2017 testimony. See Reonal, 5 Vet. App. at 461; Dalton, 21 Vet. App. 23. A remand is also necessary to acquire documents not previously associated with the claims file. At his August 2017 hearing, the Veteran explained that he received treatment from a VA physician specifically for RLS as recently as 2017. Although the Veteran was granted a 60 day extension to submit additional evidence, the record does not indicate that the Veteran submitted documents related to this treatment or that efforts have otherwise been made to obtain any post-service treatment records. VA's duty to assist claimants in substantiating a claim for VA benefits includes a duty to make reasonable efforts to assist a Veteran in securing evidence necessary to substantiate his claim. 38 U.S.C. §§5103A; 38 C.F.R. § 3.159(c) (2017). The outstanding VA treatment records must be obtained before VA can render a decision on this claim. Accordingly, the case is REMANDED for the following action: 1. Obtain, with any necessary authorization from the Veteran, copies of all medical records which have not been previously secured from all VA facilities with regard to the Veteran's left and/or right leg disability. The Veteran may also submit the records himself. The AOJ must make as many attempts as are necessary to obtain the documents and, if there are no documents available, obtain confirmation thereof. 2. Schedule the Veteran for an examination with a qualified VA examiner to clarify the nature of his current left and/or right leg disability or disabilities. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the examination report. The examiner must do the following: First, clarify the nature of any left and/or right leg disability or disabilities that have existed at any point since the submission of the Veteran's March 2012 claim. Second, for each current disability identified, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the disability began during or was caused by the Veteran's active duty service, or manifested within one year of service separation. Third, for each current disability identified, the examiner must provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's current left and/or right leg disability is caused by or aggravated beyond its natural progression by the Veteran's service-connected sleep apnea. The examiner must provide a detailed rationale for each opinion generated with citations to the record if needed. In providing the rationale, the examiner must consider and comment on the following: (a) The Veteran's lay statements that he experiences unpleasant sensations in his legs during the day that are more severe when he is at rest. If there is a clinical or medical basis for corroborating or discounting the reliability of the lay statements provided by the Veteran, the medical professional must so state, with a complete explanation in support of such a finding. (b) Notations in the Veteran's STRs indicating that he was diagnosed with Restless Leg Syndrome. If the examiner finds that the diagnosis of Restless Leg Syndrome was in error, the examiner must provide reasons supporting that conclusion. 3. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ must readjudicate the claim that has been remanded. If any benefit sought in connection with the remanded claim is denied, the AOJ must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).