Citation Nr: 21002722 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-28 261 DATE: January 14, 2021 ORDER Service connection for restless leg syndrome (RLS) is denied. FINDING OF FACT The Veteran’s RLS did not have its onset in service, did not manifest to a compensable degree within one year of discharge, and is not otherwise causally related to service, to include claimed in-service exposure to trichloroethylene. CONCLUSION OF LAW The criteria for service connection for RLS have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1967 to February 1968. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the February 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, continued the previous denial of service connection for RLS. The Veteran’s Notice of Disagreement (NOD) was received in January 2015. The Statement of the Case was issued in May 2016 and the Veteran’s VA Form 9, substantive appeal to the Board was received in June 2016. In September 2019, the Veteran and her representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board videoconference hearing. The transcript is of record. In November 2019, the Board remanded the claim for further development and adjudication. Entitlement to service connection for RLS. The Veteran seeks service connection for RLS. At the September 2019 Board hearing, the Veteran testified that she began experiencing symptoms of what was later diagnosed as RLS in 1970, approximately two years after service. She was not able to lie down or sleep because of the sensation and movement in her legs. The Veteran alleges that her RLS is a result of exposure to trichloroethylene (TCE), which she alleges was in the drinking water at the El Toro Marine Corps Base while she was stationed there. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease was manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or, if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those diseases explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of RLS. Her military personnel records confirm that she was stationed at El Toro Marine Corps Base. The Veteran submitted numerous internet articles in support of her contentions. This includes an August 2008 website print out from “www.mwsg37.com” titled “Marine Corps Air Station El Toro.” The website states that the former Marine Corps Air Station El Toro, California is one of 130 installations on the National Priority List and that the purpose of this website is to provide a “heads-up to other Marines about the environmental hazards found at El Toro”. The website consists of what appears to be a personal account of El Toro Marine Base history by an individual named R.O. There is a list of health problems associated with TCE including RLS. However, there are no resources, studies, or any other objective evidence in support of any of the information that is posted on this website. Next, there is an October 2010 internet article from “veteranstoday.com” by the same individual, R.O. titled “El Toro’s Most Toxic 200 Acres”, indicating that TCE was used for decades at the Marine Corps Base. Again, no objective evidence or resource is provided in support of any of the contentions. Next, there is a printout from what appears to be an internet message board with comments from individuals regarding their experiences with TCE. There is a June 2013 online article titled Toxic Neuropathy Clinical Presentation, indicating that patients with neuropathy typically present with symptoms of pain, tingling, or numbness in their feet, and that this pain may be accompanied by RLS. The article goes on to state that toxic neuropathy due to recreational drug or chemical abuse may be more difficult to uncover, and that dysfunction associated with environmental exposure to TCE, mainly subclinical, is revealed by electrodiagnostic techniques. There is a printout from an internet message board titled “Hadit.com for the Veterans Who’ve Had It With The VA”, with various online posts from individuals giving advice on how to establish disability through the VA, including individual cases of alleged TCE exposure. There are numerous other similar internet articles and message board printouts. Finally, there is an August 2012 Center for Environmental Health Bureau of Toxic Substance Assessment article outlining effects of TCE. This article states that TCE is linked to effects on the central nervous system and irritation of the mucous membranes. There is no mention of RLS. Finally, the Veteran submitted a partial print out of an unrelated Board decision regarding increased disability rating for a Veteran with an established RLS service connection. An October 1998 letter from Dr. R.G., the Veteran’s private physician indicates that she has been in their care since 1987 when she presented with symptoms consistent with RLS which had their onset about a year before that. The Veteran was noted to have leg restlessness and periodic movements of sleep, partially controlled with Sinemet. RLS was listed under impressions. An October 2000 letter from Dr. R.G. contains a diagnosis for RLS and indicates that the Veteran’s lower extremity EMG came back normal. An August 2019 letter from Dr. R.G. indicates that the Veteran was treated in his office from 1983 through 2012 for symptoms consistent with RLS, developing at an early age with no family history. Dr. R.G. indicated that in their opinion, this condition can be attributed to toxic exposure while at El Toro Marine Corps Base. A September 2019 letter from Dr C.N. indicates that the Veteran has been treated in their office for the last five years. Dr. C.N. indicated that the Veteran printed out some information about contaminated water at El Toro Marine Corps Base and stated that she was stationed there from 1966 to 1968. Dr. C.N. further indicated that after reading over the information that was given to them by the Veteran, they can say that the Veteran’s RLS could be at least as likely as not related to her military service. In March 2020, the Veteran underwent a VA examination for her claim. She was diagnosed with RLS. She reported onset of symptoms in 1970 and claimed nocturnal “dancing legs” would not let her stay still. She also reported sleep disturbance related to her leg movements. The Veteran reported that with persisting symptoms and consultations she was eventually diagnosed with RLS around 1980. She indicated that her RLS is a result of trichloroethylene exposure in drinking water while stationed at El Toro. The VA examiner indicated that her RLS requires continuous medication for control in the form of Gabapentin. The VA examiner concluded that it is less likely than not that the Veteran’s RLS was incurred in or caused by service. The VA examiner indicated that records and history do not suggest that RLS began in service and there is no temporal link between active duty and RLS. The VA examiner cited medical literature in support of the opinion that causes of RLS remain unknown. The VA examiner went on to state that because there are no known causes for RLS, attributing it to TCE exposure is speculative. The VA examiner cited several Center for Disease (CDC) articles in support of their conclusions that there is no credible reference linking RLS and TCE exposure and that an overview of the TCE toxicity does not indicate an association between TCE and RLS. The VA examiner also indicated that the letters from Dr. C.N. and Dr. R.G. do not provide evidence or rationale for their conclusions. Based on a review of the entire record, the preponderance of the probative evidence is against the finding that the Veteran’s RLS had its onset in service, manifested to a compensable degree within one year of discharge, or is otherwise causally related to the Veteran’s service, to include due to claimed in-service exposure to TCE. As such, service connection is not warranted. The Veteran’s RLS did not have its onset in service and did not manifest to a compensable degree within one year of discharge. Indeed, the Veteran has not contended otherwise. She Veteran alleges that she began experiencing symptoms of RLS in 1970, approximately 2 years after service. Thus, the remaining question is whether the Veteran’s RLS is causally related to her service, to include due to claimed in-service exposure to TCE. With respect to the nexus, the Veteran did not present any competent medical evidence linking her RLS to the claimed in-service exposure to TCE. The internet articles and message board print outs that she submitted cannot be assigned probative value and cannot serve as evidence that her RLS is caused by the claimed in-service exposure to TCE. The message board print outs contain accounts of other individuals claiming to be suffering effects of TCE exposure and do not pertain to the Veteran’s case. The internet articles indicating that TCE was used at El Toro and caused health problems do not contain any objective or competent supporting evidence. The source of the internet articles is an individual named R.O., who does not possess any medical expertise to provide a nexus opinion in this case. The August 2012 Center for Environmental Health Bureau of Toxic Substance article outlines the effects of TCE and does not mention RLS. These articles do not pertain to the Veteran’s particular etiology and do establish a causal link between TCE and RLS. The internet articles from R.O. do not contain competent probative evidence. Moreover, the March 2020 VA medical opinion indicates that there is no medical link between TCE and RLS and provides numerous medical articles, including from competent medical resources, as well as a full rationale for the conclusion. Specifically, the March 2020 VA medical opinion indicates that there are no known causes of RLS, and that the overview of TCE’s toxicity does not indicate an association with RLS. The March 2020 VA medical opinion is afforded probative value in this case as the conclusion is supported by adequate rationale and appropriate medical literature. Although the appellant sincerely believes that her in-service TCE exposure led to her developing RSL, she is not competent to provide a medical opinion in this case. The nexus in this case cannot be competently addressed by the Veteran as a lay person based on personal observation. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records and studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran’s contentions with respect to a nexus in this case also cannot serve as basis for an award of service connection. The August 2019 and September 2019 letters from the Veteran’s private physicians indicate that the Veteran’s RLS can be attributed to toxic exposure to TCE. However, neither the August 2019 nor the September 2019 letters provide any rationale for these conclusions and cannot be afforded probative value. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Moreover, those opinions were based solely on the literature provided by the Veteran, which, as pointed out, is not competent evidence. By contrast, the May 2020 VA medical opinion indicated that there are no known causes for RLS and provided competent medical literature in support of the conclusion. Given that RLS has no known causes, it would be purely speculative to conclude that the Veteran’s RLS is at least as likely as not (a 50 percent or higher likelihood) related to any in-service TCE exposure, particularly when there is no indication of the level of exposure to the Veteran. (Continued on the next page)   In this case, the diagnosis of a current disability and service at El Toro Marine Corps Base have been confirmed. While the Veteran may have been exposed to TCE in service, the probative medical evidence of record indicates that there is no causal link between TCE and developing RLS, as RLS has no known causes. Thus, the preponderance of the evidence supports a finding that the Veteran’s RLS did not have its onset in service, did not manifest within one year of discharge, and is not otherwise causally related to the claimed in-service TCE exposure. As the preponderance of the competent evidence fails to show a nexus in this case, service connection is denied. 38 U.S.C. § 5107(b). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.