Citation Nr: 18149129 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-18 141 DATE: November 8, 2018 ORDER Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected disability, is denied. REMANDED Entitlement to service connection for sleep apnea as secondary to service-connected diabetes is remanded. Entitlement to service connection for urinary frequency as secondary to service-connected diabetes is remanded. Entitlement to higher staged initial evaluations for coronary artery disease, rated 10 percent prior to March 13, 2017 and 60 percent from March 13, 2017, is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of restless leg syndrome. CONCLUSION OF LAW The criteria for service connection for restless leg syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1965 to December 1986. 1. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected disability Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The Veteran asserts that service connection is warranted for restless leg syndrome. Specifically, in his August 2014 informal claim benefits, he asserted that service connection was warranted for restless leg syndrome as secondary to his service-connected diabetes. In a September 2015 statement, the Veteran reported, in part, that during a 2009 medical examination he had been diagnosed with numbness and mild edema in both legs due to diabetic polyneuropathy. He further stated that during his infrequent VA examinations since that time, no action or evaluation was conducted and discussion of this issue during visits was not acted upon. In an April 2017 substantive appeal, the Veteran stated, in part, the most common cause of restless leg syndrome was peripheral neuropathy, he also stated restless leg syndrome was a secondary effect of diabetes, and that a high percentage of people with diabetes have restless leg syndrome which was worsened by peripheral neuropathy. He also stated that it was apparent that the peripheral neuropathy in his lower extremities has been aggravated and worsened since the initial award and he requested the disability rating of 10 percent be increased to 30 percent. In this regard, a December 2009 rating decision granted service connection for peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity. The Veteran did not appeal the evaluations or effective dates of service connection assigned for these disabilities, and no new and material evidence was submitted within the appeal period, thus, the December 2009 rating decision is final and these determinations are not at issue in this appeal. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Further, a March 2016 rating decision, which is also final, confirmed and continued the previous established effective dates for service connection for peripheral neuropathy of the left and right lower extremities. Id. Restless leg syndrome is “a clinical complex characterized by nocturnal cramping of the anterior calf, restlessness, a feeling of heaviness, aching, painful paresthesia and tinging in the legs with uncontrolled twitching, relieved by movement; RLS is worse at night with recumbency, and interferes with sleep.” McGraw-Hill Concise Dictionary of Modern Medicine. S.v. “Restless Leg Syndrome.” Retrieved November 5 2018 from https://medical-dictionary.thefreedictionary.com/restless+leg+syndrome. The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a restless leg syndrome, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). In this regard, an October 2014 VA examiner stated, in part, that no current diagnosis of restless leg syndrome was found. The October 2014 VA examiner explained that restless leg syndrome was not listed in the October 30, 2013 polysomnogram at El Paso Sleep Center, the November 10, 2013 NCPAP Titration polysomnogram at El Paso Sleep Center, or in the problem list from the El Paso VA Health Care System. Consistent with the October 2014 VA examiner’s finding, the Veteran has submitted private medical records; however, such do not provide any indication of restless leg syndrome. Further, as indicated by the October 2014 VA examiner, restless leg syndrome was not listed in the October 2013 or November 2013 private polysomnograms. Specifically, the October 2013 and November 2013 private polysomnograms described findings which did not include restless leg syndrome and each record also explicitly stated no unusual behavior was noted. Thus, findings consistent with the above definition of restless leg syndrome have not been demonstrated. Additionally, despite consistent VA treatment, VA treatment records dated throughout the pendency of the appeal do not contain a diagnosis of restless leg syndrome, references to such, or complaints related to such. In this regard, although not proximate to the current claim for restless leg syndrome, which was received by VA in August 2014, an October 2007 medical record noted complaints of vibratory sensations in the feet and peripheral neuropathy and a September 2009 VA treatment record noted, in part, that the Veteran discontinued a particular medication on his own after having cramping in his legs and arm. A September 2009 VA examiner diagnosed, in part, peripheral neuropathy of the bilateral lower extremities and described that the Veteran reported when he got up at night he felt both lower legs did not have command from his brain and that he had cramps in the lower third of his legs. Similarly, an August 2010 VA examiner diagnosed peripheral neuropathy of the right and left lower extremities associated with diabetes. The examination report noted that the Veteran reported left lower extremity cramps three to four times a week, denied right lower extremity cramps, and endorsed less sensitivity in his right lower extremity. The August 2010 VA examination also reported, in part, the Veteran reported he could not sit for long periods of time because of leg pain. More recently, an October 2016 VA treatment record documented the Veteran reported, in part, that a specific medication had resulted in leg swelling, which was resolving since he stopped it. Thus, during the pendency of the claim, the record contains a complaint of swelling, which is not consistent with above definition of restless leg syndrome. Moreover, as discussed above, the December 2009 rating decision granted service connection for peripheral neuropathy of the right and left lower extremities; thus, the Veteran’s prior leg complaints have been accounted for and attributed to his service connected peripheral neuropathy. Further, in his April 2017 substantive appeal, the Veteran stated, in part, no medical evaluation was conducted by the VA examiner, apparently asserting that the October 2014 VA examiner’s findings lacked probative value due to the lack of a physical examination. However, the Board is entitled to presume the competency of the VA examiner and specific challenges to a VA examiner’s competency must be raised by the Veteran to overcome this presumption. The Board does not find that the presumption of competency of a VA medical expert has been rebutted in this case. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). Further, as the October 2014 VA examiner’s findings were based review of the record, with consideration of the Veteran’s subjective complaints, his opinion is entitled to substantial probative weight. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). It is within the Veteran’s realm of personal knowledge as to whether he has experienced what he believes are symptoms of restless leg syndrome, such as swelling. See Layno v. Brown, 6 Vet. App. 465 (1994). It is not shown, however, that the Veteran possesses the medical expertise necessary to provide a probative opinion on a complex medical matter as a diagnosis related to restless leg syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence, specifically October 2014 VA examiner’s findings, which is consistent with the other medical evidence, and found that the Veteran did not have a diagnosis of restless leg syndrome. Thus, the most probative evidence is against finding that it is at least as likely as not that the Veteran currently has restless leg syndrome. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to restless leg syndrome, and thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for restless leg syndrome. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea as secondary to service-connected diabetes is remanded. An October 2014 2014 VA examiner addressed whether the Veteran’s diagnosed sleep apnea was at least as likely as not proximately due to his service-connected diabetes; however, the examiner did not address the claim on the basis of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progression by service-connected diabetes. 2. Entitlement to service connection for urinary frequency as secondary to service-connected diabetes is remanded. A September 2014 VA examiner addressed whether the Veteran’s diagnosed voiding dysfunction (frequency) was at least as likely as not proximately due to his service-connected diabetes; however, the examiner did not address the claim on the basis of aggravation. Id. Thus, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progression by service-connected diabetes. 3. Entitlement to higher staged initial evaluations for coronary artery disease, rated 10 percent prior to March 13, 2017 and 60 percent from March 13, 2017, is remanded. VA last obtained an ischemic heart disability benefits questionnaire in November 2012, six years ago. The mere passage of time, alone, is not sufficient to trigger a remand for another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, VA’s duty to assist a veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the gap in time since the Veteran’s examination and the existence of private medical records which reflected, in part, the Veteran completed a modified Bruce protocol stress test on March 13, 2017 with a workload of 4.5 METS before having to stop secondary to fatigue and EKG changes, the Board finds that a new VA examination is warranted. As alluded to above, of record are private medical records, submitted by the Veteran, regarding his coronary artery disease, from Dr. R. B., a medical provider affiliated with Elite Group Cardiology, which consist of an undated letter received by VA in October 2013 and treatment records dated in November 2015 and March 2017. However, the Board is unclear as to whether such records are complete. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Thus, any additional private treatment records should be obtained, to the extent possible, during the appeal period at issue, from Dr. R. B., affiliated with Elite Group Cardiology, as well as relevant records from any additional provider which may be identified by the Veteran. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. R. B., affiliated with Elite Group Cardiology, or for any additional provider which may be identified by the Veteran, for relevant treatment for his coronary artery disease. Make two requests for the authorized records for any identified medical provider, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to his coronary artery disease alone and discuss the effect of the Veteran’s coronary artery disease on any occupational functioning and activities of daily living. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progression by his service-connected diabetes. A complete rationale should be provided for all opinions and conclusions expressed. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s voiding dysfunction (frequency) is at least as likely as not aggravated beyond its natural progression by his service-connected diabetes. A complete rationale should be provided for all opinions and conclusions expressed. 5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel