Citation Nr: 1815744	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO. 14-35 044	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1. Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected low back disability.

2. Entitlement to service connection for neurological disorder of the bilateral upper extremities, to include carpal tunnel syndrome (CTS).

3. Entitlement to service connection for bilateral restless leg syndrome (RLS).

4. Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability (low back disability).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel


INTRODUCTION

The Veteran had active military service from August 1974 to August 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In October 2017, the Veteran testified at a Travel Board hearing. The transcript of the hearing is of record. 

The issues of entitlement to service connection for bilateral knee disability, to include as secondary to service-connected low back disability; entitlement to service connection for neurological disorder of the bilateral upper extremities, to include CTS; and entitlement to an initial rating in excess of 20 percent for service-connected low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

There is no evidence of record which establishes that the Veteran has bilateral RLS. 


CONCLUSION OF LAW

The criteria for service connection for bilateral RLS have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the Veteran by way of a January 2013 letter. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issue decided herein. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded a VA medical examination in March 2013. Based on the examination and the records, the VA medical examiner was able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

II. Service Connection

Generally, to establish service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

In this case, the Veteran claims that service connection for bilateral RLS is warranted because during his time in service he had nightly involuntarily movement of his legs. The Board finds, however, that the evidence of record does not show that RLS has ever been diagnosed. 

A review of the service treatment records shows that the Veteran had cramps in his lower legs consistent with charley horse and/or shin splints. The Veteran also affirmed that he had cramps in his legs. However, except for this handful of occasions of leg cramps, the service treatment records generally do not reflect any complaints, treatment, or symptoms related to RLS. In fact, the records show the Veteran had normal neurological findings. 

A review of post-service treatment records shows that the Veteran has had unremarkable neurological findings. Specifically, in the March 2013 VA examination the Veteran exhibited unremarkable neurological findings as he had normal reflexes, muscle strength, and sensation in his lower extremities. 

Further, the Veteran's treatment records do not reflect a diagnosis of RLS. At the October 2017 hearing, the Veteran stated that a July 2014 sleep study diagnosed him with RLS. However, a review of the sleep study contained no such diagnosis. The sleep study diagnosed the Veteran with sleep disordered breathing and presumed obstructive sleep apnea, but no diagnosis of RLS was assigned. 

The Board acknowledges the Veteran's and his wife's statements that he has RLS that is related to service. However, the Board finds that there is limited probative value to these lay statements. Although the Veteran and his wife are competent to describe the symptoms the Veteran has experienced, and are credible in their descriptions thereof, they are not competent to assign a diagnosis to those symptoms, as such identification requires medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). Thus, the Board finds that there is no competent and credible evidence of record that establishes that the Veteran has a diagnosis of RLS. 

In short, the evidence of record does not show that the Veteran has the claimed disability. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for RLS. The benefit-of-the-doubt rule does not apply, and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for bilateral restless leg syndrome is denied.



REMAND

Unfortunately, a remand is required regarding the Veteran's claims for entitlement to service connection for bilateral knee disability, to include as secondary to service-connected low back disability; entitlement to service connection for neurological disorder of the bilateral upper extremities, to include CTS; and entitlement to an initial rating in excess of 20 percent for service-connected low back disability. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. 

A. Bilateral Knee Disability

At the October 2017 hearing, the Veteran stated that he had multiple knee injuries and impairments during service. A review of the service treatment records shows that in August 1979 the Veteran twisted his knee. In October 1992, the Veteran was noted to have recurrent bilateral knee pain. Specifically, the Veteran reported that he had a burning sensation under the knee cap in the lower portion of the left knee and in the upper portion of the right knee. Despite the complaint, on examination, the Veteran did not exhibit effusion, crepitus, or edema. In June 1993, the records reflect that the Veteran had bilateral knee and tibia pain for 1.5 years. An undated record shows that the Veteran was struck on his right knee by a hard ball when playing roller hockey and was subsequently diagnosed with contusion. In another undated record, it was noted that the Veteran had painful and swollen joints in his knees due to arthritis. Although the record referenced a bone scan that found arthritis in the bilateral knees, a review of the actual bone scan only noted that the abnormal findings were consistent with shin splints and stress reactions of the feet. 

Despite the multiple knee injuries, complaints, and findings, the March 2013 and October 2015 VA examiner only noted the presence of "one brief inadequate knee entry" in the service treatment records. Further, in the October 2015 addendum opinion, the examiner opined that the Veteran's right knee disability is not related to or caused by service as there is no evidence from physical findings or studies that demonstrated that a knee problem is aggravated or caused by back strain. The Board finds the opinion insufficient for multiple reasons. First, the opinion only references the one knee entry from the service treatment records, when clearly the service treatment records show multiple knee injuries and complaints. Further, the examiner did not opine as to the Veteran's left knee disability. In addition, the examiner's opinion on aggravation is a conclusory statement without any rationale. As such, the Board finds that a new VA examination is required to thoroughly address the nature and etiology of the Veteran's bilateral knee disability. 

B. Neurological Disorder of the Bilateral Upper Extremities

At the October 2017 hearing, the Veteran stated that he was a mechanic in service and worked on radars for air defense weapons system. The Veteran stated that his job required extensive manual screwdriving of radar panels with over 50 screws. As such, the Veteran contends that the repetitive motions of his wrists and arms caused a neurological disorder of his bilateral upper extremities, including CTS. The Board finds the Veteran's testimony credible that his in-service job as a mechanic required him to perform repetitive motions, in particular with his wrists, hands, and arms.

A review of service treatment records shows that the Veteran generally had normal upper extremities with no complaints, treatment, or diagnosis of any neurological disorder of the bilateral upper extremities. However, in April 1986, the Veteran did complain of a sore right wrist after bowling. On examination, the bilateral wrists appeared equal and the right wrist had full range of motion with pain. No diagnosis was assigned at that time. 

A review of post-service treatment records shows that the Veteran complained of numbness in his right index and third fingers. A September 2015 nerve conduction study showed that the Veteran was negative for CTS, and had no pinched nerve in the neck, elbow, or the wrist.  

In March 2013, the Veteran underwent a VA wrist examination; however, at that time, he was found only to have a ganglion cyst on the right that had been excised. No assessment of his reported symptoms or diagnosis of CTS was made.

On review of the above records, the Board finds that VA has a duty to assist the Veteran by providing a medical examination and obtaining a medical opinion. In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds a new VA examination is required to thoroughly address the nature and etiology of the Veteran's claimed neurological disorder of the bilateral upper extremities. 

C. Low Back Disability

A review of the records shows that the Veteran's low back disability changed since the March 2013 VA examination. In the March 2013 VA examination, the Veteran represented guarding and/or muscle spasm but not abnormal gait or spinal contour. The Veteran had unremarkable neurological findings, and his sensation, reflexes, and muscle strength were all normal. On examination, the Veteran had no ankylosis and was able to flex to 60 degrees with pain. On repetitive testing, the Veteran had no further limitation except left lateral flexion was limited to 20 degrees. The Veteran tested negative on bilateral straight leg raising test. The examiner noted that the Veteran would have functional loss or impairment upon repetitive use. 

As for post-service treatment records, a September 2008 x-ray scan of the lumbar spine revealed mild to moderate degenerative changes of the lumbosacral spine without displaced fracture. In March 2013, the Veteran exhibited tenderness in the L3-L4 and L4-L5 but still had full range of motion. In May 2013, the Veteran's active range of motion consisted of 50 percent flexion and 20 percent extension. In August 2013, the Veteran underwent right L3-L4 minimally invasive microdiskectomy and left L5-S1 minimally invasive microdiskectomy. After the surgery, the Veteran's low back disability appeared to have improved as his complaint of back pain significantly decreased. As the records show the Veteran's low back disability has changed since the March 2013 VA examination, the Board finds that an updated VA examination is required to thoroughly address the current nature and severity of the Veteran's lumbar spine disability. 

The Veteran is hereby notified that it is his responsibility to report for an examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a new VA examination for bilateral knee disability, neurological disorder of the bilateral upper extremities, and low back disability. Furnish the Veteran's claims file, including a copy of this remand, to the examiner. The examiner should specifically state that the entire claims file has been reviewed, including this remand order.

Bilateral knee disability-After examining the Veteran and reviewing the claims file, the reviewer must determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral knee disability had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran's report of in-service onset of symptoms, as well as the documented knee complaints during service, as noted above.

The reviewer must also determine if it is at least as likely as not that the Veteran's bilateral knee disability is proximately due to his service-connected low back disability. 

The reviewer must also determine if it is at least as likely as not that the Veteran's bilateral knee disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected low back disability. 

If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of bilateral knee disability by the service-connected low back disability.

Neurological disorder of the upper extremities-After examining the Veteran and reviewing the claims file, the reviewer must provide a diagnosis for the Veteran's neurological disorder of the bilateral upper extremities and determine if it is at least as likely as not (a fifty percent probability or greater) that the Veteran's neurological disorder had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must specifically discuss the Veteran's report of in-service onset of symptoms as noted above.

Low back disorder-The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed.

(a) The examination must record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. If the low back cannot be tested on weight-bearing, then the examiner should indicate why such testing cannot be done. 

(b) The examiner must also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner should provide an explanation for why this is so. 

(c) Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's back disorder has on his occupational functioning, and whether or not his back disorder impacts his ability to perform ordinary activities of daily living. 

A detailed rationale for all opinions must be provided. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Thereafter, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

The appellant has the right to submit additional evidence and argument on the 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 (2012).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs