Citation Nr: 1819783 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 12-11 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for bilateral restless leg syndrome (RLS). REPRESENTATION Appellant represented by: George T. Sink, Attorney-at-Law ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard from June 1967 to August 2008, including periods of inactive and active duty training. There is a verified period of active duty for training from June 1967 to January 1968, and active service from December 1999 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. Jurisdiction is now with the RO in Columbia, South Carolina. The Veteran initially requested a Board hearing in connection with his appeal. A Board hearing was scheduled for November 2016; however, prior to the hearing, in its October 2016 brief, the Veteran's attorney indicates that he requests that his hearing be withdrawn. In January 2017, the Board remanded the claim for further development, to include obtaining private medical records and providing the Veteran with all relevant VA examinations to fully evaluate the Veteran's RLS disability. FINDING OF FACT The Veteran's RLS is severe in each leg. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating, but not higher, for a right leg RLS have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8199-8103 (2017). 2. The criteria for a 30 percent disability rating, but not higher, for a left leg RLS have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8199-8103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Applicable Laws, Regulations & Analysis There is no specific rating criterion for restless legs syndrome in the regulatory scheme. Thus, the Board must consider a rating by analogy for a Diagnostic Code (DC) that most accurately represents the Veteran's symptomatology. See 38 C.F.R. § 4.20. The RO rated the disability as a convulsive tic under DC 8103. Under Code 8103, mild convulsive tics are zero percent disabling, moderate convulsive tics are 10 percent disabling, and severe convulsive tics are evaluated as 30 percent disabling. The note to this rating code indicates that these characterizations are dependent upon the frequency and severity of the symptoms and muscle groups involved. See 38 C.F.R. § 4.114, DC 8103. The Board observes that words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In its January 2017 remand, the Board indicated that the previous April 2016 VA examination was insufficient to rate the disability and requested that the RO provide the Veteran with all necessary VA examinations to assess the severity of his bilateral RLS. It further noted that although a VA primary care note dated in February 2016 described the Veteran's disability as "severe," it was not enough to actually rate the disability. Subsequent to the Board's January 2017 remand, in June 2017, the Veteran underwent VA examinations for peripheral nerves conditions, Parkinson's disease, diabetes mellitus, hematologic and lymphatic conditions, including leukemia, kidney conditions, and non-degenerative arthritis conditions. The VA examiner noted no current diagnoses of peripheral nerve condition, Parkinson's disease, diabetes mellitus, hematologic and lymphatic conditions, kidney conditions, or non-degenerative arthritis. The VA examiner noted that these examinations were conducted to satisfy the Board's remand directives in providing the Veteran with all possible examinations needed to fully evaluate the RLS disability. During the VA examination for the peripheral nerves conditions, the Veteran reported that he continues to have symptoms related to his RLS, which are hard to describe. The symptoms are present during the day, but it is not as noticeable, because he can move around. Though, at night, he has to constantly move to control his symptoms. Upon physical examination, the examiner noted that the Veteran did not have any symptoms attributable to any peripheral nerve conditions. Muscle strength testing was normal (5/5) throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout, and there was no evidence of trophic changes. All nerves were normal. The Veteran's gait was normal and he was not using any assistive devices. Nevertheless, the examiner stated that RLS is a condition in which there is an uncontrollable urge to move one's legs. RLS can begin at any age and generally worsens as one ages. The examiner stated that symptoms of RLS are usually described as crawling, creeping, pulling, throbbing, aching, and itching. Often there is no known cause for RLS, but sometimes it runs in families, especially if the condition starts before the age 50. Risk factors include low iron levels, kidney failure, Parkinson's disease, diabetes mellitus, and rheumatoid arthritis (which is the reason the Veteran underwent the above VA examinations). RLS symptoms can range from barely bothersome to incapacitating and progress with age. The examiner then opined that this Veteran's symptoms would be classified as severe and if they continue to progress, they could become incapacitating. The Veteran's symptoms are mildly more severe in his left leg and are continuous with significant symptoms appearing while sitting in the examination room during the evaluation. The examiner's noted that the Veteran's nocturia is due to lower urinary tract symptoms (LUTS) from his benign prostatic hyperplasia (BPH). It was further noted that symptoms started in 2005 with a formal diagnosis in November 2006. The Veteran's symptoms continued to progress and reached the current severity in the last couple of years. The Veteran was noted to have increase in his periodic leg movements (PLM), a separate disorder from RLS during sleep studies conducted in 2004 and 2005, which were not significant enough to make a separate diagnosis of PLMD. The examiner concluded that a diagnosis of RLS is based on the criteria due to strong, often irresistible urge to move the legs, usually accompanied by uncomfortable sensations. These symptoms start to get worse at night and cannot be explained solely by another medical or behavioral condition, which is the case for this Veteran. In a July 2017 correspondence, the Veteran's attorney argued that based on this examination report, the Veteran is entitled to a 30 percent disability rating for "severe" symptoms associated with his bilateral RLS. The representative further indicated that the RO also erred in rating the Veteran's bilateral RLS under one rating, where in fact each leg should be rated separately. Based on the foregoing, the Board finds that the probative and competent medical and lay evidence suggest that the Veteran's bilateral RLS symptoms are severe. This is supported by the June 2017 VA examiner's report, which also indicated that this level of severity was present for a few years. Moreover, the Board finds that the examiner's assessment showing that the left leg symptoms were mildly more severe than the right leg symptoms is not suggestive that the right leg's symptoms are not "severe in nature." Accordingly, the Board finds that the Veteran's symptoms more nearly approximate the 30 percent disability rating for each leg. A higher rating is not warranted, since 30 percent is the highest rating possible has been assigned under the diagnostic code. In considering whether the Veteran is rated under the appropriate DC, the Board finds that the only other available code that could be used to rate the Veteran's RLS by analogy is DC 5312 for Muscle Group XII. Nevertheless, the Board is already granting the maximum disability rating available under the schedular criteria for the Veteran's bilateral RLS disability under DC 8103. Here, rating the Veteran under DC 5312 will not assist the Veteran in getting a higher rating, as 30 percent disability rating is the highest possible rating under this DC as well. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER For the entire period on appeal, a 30 percent disability rating, but not higher, for restless leg syndrome of the right leg is granted, subject to the law and regulations governing the payment of monetary benefits. For the entire period on appeal, a 30 percent disability rating, but not higher, for restless leg syndrome of the left leg is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs