Citation Nr: 21066457 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-40 040 DATE: November 1, 2021 ORDER Entitlement to service connection for restless leg syndrome (RLS), to include as due to exposure to environmental hazards or as secondary to spondylolysis, is denied. FINDING OF FACT The Veteran's RLS did not have its onset during the Veteran's active service and is not otherwise etiologically related to service, to include exposure to environmental hazards; RLS was not manifest to a compensable degree within one year of the Veteran's separation from active service; and RLS is not proximately due to or aggravated by the Veteran's service-connected spondylolysis. CONCLUSION OF LAW The criteria for service connection for RLS, to include as secondary to spondylolysis, have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1988 to July 1988 and from December 1989 to July 1992. The Veteran had service in Southwest Asia from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2013 rating decision. The Veteran requested a hearing before the Board. The requested hearing was conducted in November 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In April 2019, the Board remanded this issue for additional development. The issues of entitlement to service connection for gastroesophageal reflux disease and gastritis were also remanded in April 2019. In May 2021, service connection for gastroesophageal reflux disease with gastritis was granted, and as such, these issues are no longer before the Board. Entitlement to service connection for restless leg syndrome (RLS), to include as due to exposure to environmental hazards or as secondary to spondylolysis. The Veteran seeks entitlement to service connection for restless leg syndrome. He asserts that his RLS is due to exposure to environmental hazards during service in Southwest Asia, or in the alternative, is secondary to his spondylolysis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, the Veteran's RLS is a disease of the nervous system and is a chronic disease enumerated under 38 C.F.R. § 3.309 (a). As such, service connection may be established by showing a continuity of symptomatology. First, the Board notes that the Veteran has a current diagnosis of RLS. See August 2013 VA examination. As such, Shedden element (1), current diagnosis, is met. Regarding element (2), an in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran's service treatment records contain complaints of leg symptoms such as numbness and tingling; however, these symptoms have been associated with his diagnosed radiculopathy of the bilateral lower extremities which is currently service connected as secondary to his spondylolysis. The Veteran testified in November 2018 that he began experiencing symptoms of RLS after his in-service accident while still in service and described the symptoms as "my legs just started jumping....my body and my brain are trying to tell me to go sleep and then all of a sudden my feet just start moving like I'm trying to walk in bed." The Board notes the Veteran is competent to report pain and symptoms such as feelings of "jumping." On the July 1992 Report of Medical History for separation, he did note neurological symptoms in the legs; however, the July 1992 Report of Medical Examination for separation did not report or diagnose any neurological disorders or abnormalities regarding the lower extremities. Furthermore, the August 2013 VA opinion opined that the Veteran's symptoms documented during service were not consistent with restless leg syndrome; the Veteran's radiating pain to the legs from approximately 1991 to 1992 was associated with spondylolisthesis, and he was not treated for symptoms of urge to move his legs during service. The Board finds the medical evidence indicating the Veteran did not have restless leg symptoms during service to be more probative than his current lay statements, as the Veteran is not competent to distinguish his symptoms of restless legs versus from those due to radiculopathy. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As such, the Board finds that element (2) is not met. Element (3), nexus, is also not met. A VA opinion was obtained in August 2013. The examiner opined that the Veteran's current RLS was less likely than not due to service. As discussed, the examiner noted that the Veteran did not have symptoms consistent with RLS during service and he was not treated for symptoms of urge to move the legs until 2006, more than a decade after leaving service. Additionally, in September 2013, a VA examiner specifically opined that the Veteran's RLS is not due to exposure to environmental hazards during service. The examiner explained that there is no medical literature establishing environmental exposure events in Southwest Asia to the development of restless leg syndrome. The Board finds the VA opinions of record highly probative because the examiners had the appropriate training, expertise, and knowledge to evaluate the claimed disability. Furthermore, the examiners also reviewed the records and considered the Veteran's statements regarding the nature and history of his condition. There are no other probative medical opinions of record relating the Veteran's RLS to service, to include exposure to environmental hazards. Furthermore, the Board finds that the Veteran's current RLS did not have an onset within one year of discharge from service. The earliest probative evidence of his current RLS is approximately 15 years after service, in 2006. See, e.g., January 2006 VA treatment note; August 2013 VA opinion. Additionally, as discussed, there is no persuasive evidence of RLS in service. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service pertaining to RLS. The symptoms during service have been associated to the currently service-connected radiculopathy of the bilateral lower extremities. In sum, characteristic manifestations sufficient to identify the disease (RLS) entity were not noted during service; they have been attributed to service-connected radiculopathy of the bilateral lower extremities. As there is no such evidence, and as the preponderance of the evidence shows that RLS did not manifest in service or until years later, chronicity during service is not established. See 38 C.F.R. § 3.303 (b). Continuity of symptoms is also not established. The Veteran is competent to report his symptoms. Moreover, the absence of contemporaneous records does not in itself render lay testimony not credible, although it may weigh against the credibility of testimony in conjunction with other evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board also notes that evidence of treatment is not required to establish continuity. See id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)) (holding that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). Nevertheless, the Veteran's lay testimony is not sufficient in itself to establish continuity of symptoms for purposes of service connection under 38 C.F.R. § 3.303 (b). In this regard, as noted, the service treatment records show that although the Veteran reported leg symptoms during service, these symptoms have been attributed to service-connected radiculopathy of the bilateral lower extremities. Thereafter, there is no documentation of RLS until a January 2006 VA treatment note, 15 years after separation, at which time the Veteran stated reported some "restlessness" and requested a trial medication for restless legs. Accordingly, the preponderance of the evidence weighs against the Veteran's lay statements asserting a continuity of symptomology ever since service. Thus, service connection for RLS is not established based on a continuity of symptomatology. See 38 C.F.R. § 3.303 (b). Finally, the Board finds there is no probative evidence that the Veteran's RLS is secondary to his service-connected spondylolysis. Several VA opinions have been obtained regarding secondary service connection. In October 2019, the VA examiner opined that the Veteran's RLS was less likely than not proximately due to or aggravated by his spondylolysis as medical literature does not support spondylolysis as a cause or aggravating factor of RLS. An addendum opinion was obtained in May 2021. The examiner also opined that the Veteran's RLS was less likely than not proximately due to or aggravated by his spondylolisthesis as there is no plausible pathophysiological mechanism of injury by which a diagnosis of spondylosis/spondylolisthesis would cause, result in, or aggravate a diagnosis of RLS. The examiner explained that common causes of RLS include iron deficiency, uremia associated with worsening kidney function, hypothyroidism, depression, fibromyalgia, Parkinson's, kidney disease and diabetes. The examiner noted that a review of records indicate the Veteran suffers from chronic kidney disease, iron deficiency anemia and depression, which are all common causes of RLS, and that RLS would not be aggravated by spondylosis/spondylolisthesis as each diagnosis is separate and independent. The Veteran has not submitted any medical opinions in support of his claim. Instead, he relies on his own lay statements that he has RLS that is directly due to service or is secondary to his service-connected spondylolisthesis. The Board has considered the Veteran's own statements regarding the nature and etiology of his disorder. The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran's lay statements are outweighed by the post-service treatment records and probative medical opinions. Further, the Veteran is not competent to diagnose RLS or render an opinion as to the cause or etiology of RLS because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The nexus question presented here involves knowledge of an internal physical process extending beyond an immediately observable cause-and-effect relationship. Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology. In summary, although the Veteran has a current diagnosis, there are no probative persuasive medical opinions linking his current disorder to service, there is no probative persuasive evidence that his disorder began within one year of discharge, and there is no probative persuasive evidence that his disorder is proximately due to or aggravated by a service-connected disability. The Board concludes that the preponderance of the evidence is against the claim for service connection for RLS and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, Counsel 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.