Citation Nr: 19123749 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 15-26 971 DATE: April 2, 2019 ORDER Entitlement to service connection for restless leg syndrome with convulsive tics is denied. FINDING OF FACT The preponderance of the evidence shows that restless leg syndrome with convulsive tics was not present in service, it is not related to service or to an incident of service origin, and it is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for restless leg syndrome with convulsive tics have not been satisfied. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 2002 to April 2006, November 2009 to September 2010, and May 2011 to December 2013. The Veteran also had addition service with a reserve component. The Board notes that the record shows that the Veteran is in receipt of a combined 100 percent rating for his service-connected disabilities at all times since December 19, 2013 (i.e., the date he separated from his last period of active duty). Initially, the Board of Veterans’ Appeal (Board) finds that the only issue in appellate status is the above service connection claim because the Veteran’s July 2015 VA Form 9, Appeal to Board of Veterans’ Appeals, limited his appeal to this issue. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (“where ... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative”). Next, the Board finds that the Veteran withdrew his July 2015 personal hearing request because he failed to show for the January 2019 hearing. Lastly, while additional records have been added to the record since the issuance of the May 2016 supplemental statement of the case, adjudication of this appeal may go forward without requesting a waiver or remanding for agency of original jurisdiction (AOJ) review because the Board finds that this evidence is not pertinent. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Service Connection Claim The Veteran claims, in substance, that service connection is warranted for restless leg syndrome with convulsive tics because it is caused by his service-connected sleep apnea. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the post-service record shows the Veteran’s being diagnosed with restless leg syndrome. See, e.g., Skagit Regional Clinics treatment record dated in January 2014. The Board also finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability. See Davidson, supra. However, service treatment records, including the January 1982, March 2002, October 2005, November 2005, December 2005, May 2006, and September 2013 examinations as well as an August 2013 examination held at Skagit Regional Clinics, are negative for an injury that caused restless leg syndrome with convulsive tics while serving with a reserving component on INACDUTRA as well as negative for complaints, diagnoses, or treatment for restless leg syndrome with convulsive tics while on active duty or ACDUTRA. In fact, when examined on all of these occasions the Veteran did not report a history of restless leg syndrome with convulsive tics and, when examined, it was specifically opined that his neurological examinations were within normal limits. These medical findings are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions); also see 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Similarly, the record does not show that the Veteran had a continued problem with restless leg syndrome with convulsive tics in and since any period of active duty service. In fact, as reported above, the January 1982, March 2002, October 2005, November 2005, December 2005, May 2006. and September 2013 examinations as well as an August 2013 examination held at Skagit Regional Clinics, are negative for complaints, diagnoses, or treatment for restless leg syndrome with convulsive tics. Post-service, the record is negative for a diagnosis of restless leg syndrome with convulsive tics until 2014. See Skagit Regional Clinics treatment record dated in January 2014; also see 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Furthermore, the Veteran does not claim and the record does not show that his restless leg syndrome with convulsive tics is due to his military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Tellingly, in September 2015 the Veteran was provided a VA examination to obtain an etiology opinion and it was opined that his restless leg syndrome with convulsive tics was not due to his military service. Moreover, the Board finds that this opinion is the most probative evidence of record because it is provided after an examination of the Veteran and a review of the record on appeal as well as supported by citation to evidence found in the claims file and not contradicted by any other medical evidence of record. See Owens, supra; Colvin, supra. Lastly, the Board finds that the most probative evidence of record shows that the Veteran’s restless leg syndrome with convulsive tics is not caused or aggravated by the service-connected sleep apna as claimed by the Veteran. See 38 U.S.C. § 1110; 38 C.F.R. § 3.310. In fact, at the September 2015 VA examination which was held for the express purpose of obtaining such as opinion the examiner opined that his restless leg syndrome with convulsive tics was not due to his sleep apnea. Specifically, the examiner opined that restless leg syndrome (RLS) is not proximately due to or the result of service-connected sleep apnea because the evidence shows that obstructive sleep apnea (OSA) and restless leg syndrome are “. . . 2 distinct and separate conditions involving different organ systems. OSA does not cause RLS. RLS was an incidental finding on the claimant’s study.” In this regard, while not the best opinion because it does not specifically use the word “aggravation,” the Board nonetheless finds that this opinion is adequate to adjudicate the secondary service connection claim because, when read in its entirety, it addresses both the caused and aggravated theories of secondary service connection. See Owens, supra. The Board also finds the opinion the most probative evidence of record because it is provided after an examination of the Veteran and a review of the record on appeal as well as supported by citation to evidence found in the claims file and not contradicted by any other medical evidence of record. See Owens, supra; Colvin, supra. In addition, the Board finds that the Veteran is not competent to provide direct or secondary nexus opinions because he does not have the required medical expertise to provide answers to these complex medical questions. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for restless leg syndrome with convulsive tics. 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. § 3.303. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that the doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel