Citation Nr: 21066671
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 11-23 019
DATE: November 1, 2021

ORDER

Entitlement to service connection for a skin disability to include as due to Agent Orange exposure is granted.

Entitlement to an initial rating of 20 percent for peripheral neuropathy of the left upper extremity prior to January 8, 2021 is granted.

Entitlement to an initial rating of 30 percent for peripheral neuropathy of the right upper extremity prior to January 8, 2021 is granted.

Entitlement to an initial rating of 30 percent for peripheral neuropathy of the left upper extremity since January 8, 2021 is granted.

Entitlement to an initial rating of 40 percent for peripheral neuropathy of the right upper extremity since January 8, 2021 is granted.

Entitlement to a rating higher than 30 percent for gastroesophageal reflux disease (GERD) is denied. 

REMANDED

Entitlement to service connection for a heart disability to include as due to Agent Orange exposure and/or due to the service connected posttraumatic stress disorder (PTSD) is remanded.

Entitlement to service connection for restless leg syndrome also claimed as due to the service connected PTSD is remanded.

FINDINGS OF FACT

1. It is as likely as not that the Veteran's skin disability is attributable to service. 

2. Prior to January 8, 2021, peripheral neuropathy of the left upper extremity was manifested by moderate incomplete paralysis.

3. Prior to January 8, 2021, peripheral neuropathy of the right upper extremity was manifested by moderate incomplete paralysis.

4. Since January 8, 2021, peripheral neuropathy of the left upper extremity is manifested by moderate incomplete paralysis.

5. Since January 8, 2021, peripheral neuropathy of the right upper extremity is manifested by moderate incomplete paralysis.

6. The Veteran's GERD has not produced symptoms of vomiting, material weight loss, and hematemesis or melena with moderate anemia. Additionally, the Veteran's disability has not produced any other combinations of symptoms productive of severe impairment of health.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a skin disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.303.

2. The criteria for entitlement to an initial rating of 20 percent for peripheral neuropathy of the left upper extremity prior to January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8615.

3. The criteria for entitlement to an initial rating of 30 percent for peripheral neuropathy of the right upper extremity prior to January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8615.

4. The criteria for entitlement to an initial rating of 30 percent for peripheral neuropathy of the left upper extremity since January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8512.

5. The criteria for entitlement to an initial rating of 40 percent for peripheral neuropathy of the right upper extremity since January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8512.

6. The criteria for a disability rating in excess of 30 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7346.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from September 1965 to September 1969.

When this appeal was last before the Board in January 2019, the issues of entitlement to a rating higher than 50 percent for PTSD and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) were remanded for further development. In a July 2020 rating decision, however, the Veteran was granted a 100 percent rating for his PTSD, effective February 28, 2007 which is the date of his original claim for service connection. As the Veteran has been granted a complete grant of benefits on this issue, this issue is no longer before the Board. 

With regard to the issue of entitlement to TDIU, the record now shows that since February 28, 2007, the Veteran has been in receipt of a 100 percent schedular rating. Nevertheless, while a TDIU rating is contingent on the schedular rating being less than total, the United States Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008) that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances where special monthly compensation (SMC) could also be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC.

During the pendency of the appeal, however, the Veteran was granted SMC under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350 (i) on account of his PTSD rated 100 percent and additional service-connected disabilities of tinnitus, hearing loss, diabetes mellitus type II, and GERD, independently ratable at 60 percent or more from February 9, 2009. He was also granted SMC under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ from March 10, 2010. Likewise, as SMC under 38 U.S.C. § 1114(s) and (k) has been granted, the Court's holdings in Bradley and Buie are not for application, and the issue of entitlement to a TDIU is therefore moot. See 38 C.F.R. § 4.16 (a).

Service Connection

The Veteran appeals the denial of service connection for a skin disability. He claims that his current skin disability is due to his exposure to Agent Orange during his service in Vietnam and/or is due to extreme sun exposure and humidity in service. He reports that he did not have any problems before service and that he was in a toxic environment while in Vietnam. He reports that he was in field most of the time in tropical conditions of heat and humidity, and combat conditions of hygiene and self-care. The Veteran reports that his skin problems started in service and that they have continued since that time. In October 1996, it was noted that the Veteran had lesions of the skin and that he had a long history of industrial exposures.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. 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). 

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 

Of note, the National Defense Authorization Act (NDAA) for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include Parkinsonism, bladder cancer, and hypothyroidism.

Here, personnel records show that the Veteran served in Vietnam during the Vietnam Era. Thus, herbicide exposure has been conceded. However, although the Veteran is shown to have actinic keratosis, the Veteran's diagnosed condition is not a condition subject to presumptive (herbicide or Agent Orange) service connection pursuant to 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). As the Veteran has not been diagnosed with one of the specific diseases listed within 38 C.F.R. § 3.309(e); service connection on a presumptive basis is not warranted.

The Board, however, finds in favor of the Veteran's claim for service connection for a skin disability on a direct basis. To that end, during the January 2021 VA examination, the Veteran was diagnosed with actinic keratosis. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner reasoned that the Veteran's skin disability was not diagnosed until 1996 and he was diagnosed with actinic keratosis. It was noted that the Veteran was released from active duty in 1969, and that he was later diagnosed with basal cell carcinoma and squamous cell carcinoma in 2017. The examiner stated that the Veteran's skin diagnosis is due to extensive sun exposure.

The Board has weighed the positive and negative evidence of record, and in resolving reasonable doubt, the Board finds in favor of the claim. In making this determination, the Board finds that positive evidence has been submitted showing a link between the Veteran's service and his current skin disability. While the January 2021 VA examiner opined that the Veteran's condition was less likely than not due to service, the examiner nevertheless found that the skin diagnosis was due to extensive sun exposure. The Veteran has reported exposure to extreme sun and humidity in service. The credible lay statements of sun exposure during service in the record in conjunction with the medical findings from the January 2021 VA examiner that the Veteran's skin diagnosis is due to extensive sun exposure place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for a skin disability is granted.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Peripheral Neuropathy of the Upper Extremities 

The Veteran appeals the denial of an initial rating higher than 10 percent for peripheral neuropathy of the left and right upper extremity prior to January 8, 2021 and rating higher than 20 percent for peripheral neuropathy of the left and right upper extremity thereafter. 

Prior to January 8, 2021, the Veteran's left and right upper extremity disability was rated under Diagnostic Code 8615. Under DC 8615, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a.

Since January 8, 2021, the Veteran's disability is rated under Diagnostic Code 8512. DC 8512 pertains to the lower radicular group, which includes the radial, median, and ulnar nerves. Pursuant to applicable law and regulation, a 20 percent evaluation is warranted where there is evidence of mild incomplete paralysis of the major lower radicular group, which is to say, the intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers. A 40 percent evaluation is warranted where there is evidence of moderate incomplete paralysis, with a 50 percent evaluation indicated for severe incomplete paralysis of the major lower radicular group. A 70 percent evaluation is warranted for complete paralysis of the major lower radicular group, in which all intrinsic muscles of the hand, and some or all of flexors of the wrist and fingers are paralyzed (substantial loss of use of hand). 

A 20 percent evaluation is warranted where there is evidence of mild incomplete paralysis of the minor lower radicular group, with a 30 percent evaluation indicated for moderate incomplete paralysis of that same group. A 40 percent evaluation is indicated where there is evidence of severe incomplete paralysis of the minor lower radicular group. Finally, a 60 percent evaluation is indicated for complete paralysis of the minor lower radicular group, in which all intrinsic muscles of the hand, and some or all of flexors of the wrist and fingers are paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a, DC 8512.

Under 38 C.F.R. § 4.124a, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 

Descriptive words, such as "mild," "moderate" and "severe," are not defined in the Rating Schedule. 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

The evidence of record establishes that the Veteran is right-hand dominant. As such, his right upper extremity is the major extremity and his left upper extremity is the minor extremity.

Initially, the Board finds in favor of a rating of 20 percent for the Veteran's left upper extremity disability and a rating of 30 percent for his right upper extremity disability prior to January 8, 2021. To that end, during this time. moderate incomplete paralysis of the upper extremities has been shown by the record. 

During the November 2009 VA examination, the Veteran reported burning and stinging sensation in the hands. The right extremity muscle strength was 5 and left extremity muscle strength was 4. There was no motor function impairment. There were decreased reflex and sensory findings of the left and right upper extremity.  There was no muscle atrophy, and no abnormal muscle tone and bulk. 

Examination in March 2011 revealed normal sensory, reflex and muscle tone findings. There was no muscle atrophy. The Veteran reported hand and feet burning. He denied any strength issues. Examination in July 2011 revealed there was decreased sensation in the hands a few inches from the wrist. At that time, the Veteran expressed peripheral neuropathy was a major concern for him. He reported stinging and burning pain in both of his feet and his hands. 

The Veteran was afforded a VA examination in July 2014. The Veteran's symptoms were described as moderate constant pain, severe paresthesias and/or dysesthesias, and moderate numbness of the right and left upper extremity. Muscle strength testing revealed normal findings (5/5) for the left and right side. There was no muscle atrophy and reflex examination was normal. The sensory examination disclosed decreased findings in the inner/outer forearm and absent findings for the hands/fingers. Examination disclosed there was incomplete paralysis of the lower radicular group.

In February 2015, the Veteran reported problems with dropping objects and losing grasp strength. He expressed that his arms and hands did not hold on or have the strength to continue to hold onto things. The Veteran stated that he had a fear of his grasp giving out.

During the August 2017 hearing, the Veteran reported numbness and tingling of the hands and arms. He expressed that they sometimes went "dead for an extended period of time." The Veteran reported constant tingling, burning, and stinging.  

For both periods during this appeal, to warrant a higher evaluation, the evidence must show moderate incomplete paralysis of the upper extremities. Descriptive words, such as "mild," "moderate" and "severe," are not defined in the Rating Schedule. Moderate has been defined as tending toward the mean or average amount of dimension.  https://www.merriam-webster.com/dictionary/moderate. During this appeal, it was noted that the Veteran had difficulty gripping items and ambulating due to numbness caused by his diabetic peripheral neuropathy.  The Veteran has consistently reported constant tingling, burning, and stinging. He has also credibly described problems with dropping objects and losing grasp strength. The Veteran is competent to report his symptoms and he has presented credible testimony.  

Examinations have also shown decreased sensory findings and some decrease in muscle strength. The Board finds that these symptoms and findings show that there has been moderate impairment throughout this appeal. Accordingly, the Board finds that the criteria for a rating of 20 percent for peripheral neuropathy of the left and a rating of 30 percent for peripheral neuropathy of the right upper extremity is warranted prior to January 8, 2021, and that a rating of 30 percent for peripheral neuropathy of the left and a rating of 40 percent for peripheral neuropathy of the right upper extremity is warranted thereafter. 

The Board finds, however, that the Veteran has not described nor has the objective evidence disclosed there has been severe impairment at any time during this appeal. The Board notes that severe has been defined as "of a great degree."  See https://merriam-webster.com/dictionary/severe. While the Veteran complained of numbness, pain, and stinging sensation in the hands prior to January 8, 2021, the evidence shows that the Veteran had essentially normal strength. During this period of time, there was no muscle atrophy and/or motor function impairment. Although there were some decreased reflex findings in November 2009, examinations in March 2011 and July 2014 disclosed normal reflexes. The Board notes that there was a showing of moderate constant pain, severe paresthesias and/or dysesthesias, and moderate numbness of the right and left upper extremity during the July 2014 VA examination. These findings, however, were not consistently shown during this period of time. Furthermore, despite these findings, the July 2014 examination disclosed normal reflexes and muscle strength. The Board is mindful of the decreased sensory findings disclosed during the November 2009 and July 2014 VA examinations. However, when the relative impairment of sensory, muscle and reflex abnormalities are considered as whole, the Board finds that the Veteran's peripheral neuropathy of the left and right upper extremity was manifested by no more than moderate incomplete paralysis during time.  

The Board also finds that the Veteran's left and right upper extremity disability is manifested by no more than moderate incomplete paralysis of the lower radicular group as of January 8, 2021. During the January 2021 VA examination, the Veteran's symptoms were described as mild constant pain, moderate paresthesias and/or dysesthesias and moderate numbness. With the exception of grip and pinch (4/5), muscle strength testing revealed normal findings (5/5) for the left and right side. There was no muscle atrophy. Reflex examination was normal. The sensory examination disclosed decreased findings in all areas. Examination disclosed there was incomplete paralysis of the lower radicular group. The severity was described as mild. It was noted that the Veteran had difficulty gripping items and ambulating due to numbness caused by his diabetic peripheral neuropathy. 

Overall, during this period of time, the Veteran has demonstrated some abnormal strength, normal reflexes and decreased sensory findings. When the relative impairment of sensory, muscle and reflex abnormalities discussed above are considered, the Board finds that the Veteran's right and left lower radicular group disability has been manifested by no more than moderate incomplete paralysis. 

Accordingly, the Board finds that the criteria for a rating of 20 percent for peripheral neuropathy of the left and a rating of 30 percent for peripheral neuropathy of the right upper extremity is warranted prior to January 8, 2021, and a rating of 30 percent for peripheral neuropathy of the left and a rating of 40 percent for peripheral neuropathy of the right upper extremity is warranted as of January 8, 2021.The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign higher disability ratings than the rating granted above. 

GERD 

The Veteran appeals the denial of a rating higher than 30 percent for his service-connected GERD. The Veteran's disability is rated under Diagnostic Codes 7346. DC 7346 addresses hiatal hernia. GERD is not listed in the rating schedule. Under Diagnostic Code 7346, a 10 percent rating is warranted where there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346.

Weight loss is a consideration in evaluating digestive system disorders. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.

During the January 2008 VA examination, the Veteran was diagnosed with GERD with persistent symptoms which were mild despite the use of Protonix and requiring additional antacids in the evening on a nightly basis. The Veteran reported indigestion and that he had GERD for some time. It was noted that for his GERD he slept with the head of the bed elevated and that he avoided foods which aggravated his stomach. He did not have nausea or vomiting, and his weight remained stable.

In December 2008, the Veteran reported increased difficulty swallowing and increased choking which caused him to throw up sometimes. He reported acid reflux and burning in his throat, esophagus and stomach all time. He expressed that he started losing weight and that he was having trouble eating anything without his stomach getting upset. 

The Veteran was afforded another VA examination in July 2014. During this examination, the Veteran's symptoms were noted to include persistently recurrent epigastric distress, reflex, and regurgitation. The Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his condition.

During the January 2021 VA examination, the Veteran reported symptoms of abdominal pain, regurgitation, heartburn, and substernal chest pain. The Veteran symptoms included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, sleep disturbance and substernal pain. The Veteran reported his abdominal pain and discomfort from GERD symptoms made it difficult to complete tasks, focus, and retain information.

After careful review of the evidence of record, the Board finds that the Veteran's GERD symptoms are adequately contemplated by the 30 percent rating assigned under Diagnostic Code 7346. In making this determination, the Board notes that the Veteran GERD symptoms have been noted to include abdominal pain, regurgitation, substernal chest pain, persistently recurrent epigastric distress, pyrosis, reflux and sleep disturbance. While the Veteran has pain, he is not shown to have symptoms of vomiting, material weight loss and hematemesis or melena with moderate anemia. 

To the extent that the Veteran has reported weight loss during this appeal, the VA examination specifically noted that he does not have material weight loss that is due to GERD. During the January 2021 VA examination, the examiner specifically did not check that material weight loss was a symptom of the Veteran's GERD. Further, the Veteran's service-connected GERD has not been shown to have produced any other combinations of symptoms that would be considered to be productive of severe impairment of health. For these reasons, the Board cannot assign a disability rating in excess of 30 percent pursuant to Diagnostic Code 7346.

As the clinical records and reports of VA examinations are absent findings consistent with the criteria for a higher 60 percent rating, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 30 percent pursuant to Diagnostic Code 7346. As such, the Board must deny the claim.

REASONS FOR REMAND

The Veteran appeals the denial of service connection for a heart disability and restless leg syndrome. He claims that his heart disability is due to Agent Orange exposure during service. He also claims that his heart disability and restless leg syndrome are due to his service-connected PTSD.	

The Veteran was diagnosed with systolic heart murmur during the January 2021 VA examination. No etiology found was noted. The VA examiner found that there was no chronic diagnosis for the claimed heart disability. It was noted that the objective examination was normal and that the symptoms were subjective only. The examiner found that a nexus had not been established and that the Veteran had a diagnosis of systolic heart murmur in May 2012 that was isolated. It was noted that follow up examination revealed RRR without murmur, and that diagnostic studies were within normal limits and did not show ischemic heart disease. 

During the January 2021 VA examination, the Veteran reported that he was unable to sleep without crossing his legs and that he was fidgety. He reported an onset since 1968 and expressed that over the years it worsened. He stated that he had a sleep study done to check for apnea and was told he had restless leg syndrome. He reportedly moved his legs over 100 times during the sleep study. The examiner stated that the symptoms were subjective and that no diagnosis was warranted. It was noted that the Veteran reported that he was diagnosed through a sleep study, however, the examiner was unable to find the sleep study in the claims file or relevant evidence. The examiner was unable to find evidence of restless leg syndrome.

Although the VA examiner was unable to render a diagnosis of restless leg syndrome, the Board notes that the Veteran has reported he crosses and uncrosses his legs throughout the night and has rapid leg movement. It is also noted that while the VA examiner was unable to render a diagnosis of restless leg syndrome, the examiner nevertheless noted that the Veteran's central nervous system disorder impacted his ability to work. The Veteran reported difficulty completing tasks, focusing, and retaining information due to daytime hypersomnolence associated with his restless leg syndrome. The Board notes that the Veteran's symptoms have not been accounted for and therefore further development is still needed on this matter.  On remand, an attempt should also be made to obtain the 2010 sleep study identified by the Veteran in November 2010 and referenced by the VA examiner.  

With regard to the claim for a heart disability, the VA examiner diagnosed systolic heart murmur but did not provide an etiology opinion. The Board also notes that the Veteran's representative has pointed out that the Veteran's treatment records show long term use of the prescription Lisinopril which he claims is to maintain heart and blood pressure. The Veteran also testified that he is taking three to four medications for his heart. The Veteran has expressed that he is on medication for his heart and the Board cannot determine from the record which medications, if any, are prescribed for the Veteran's heart. Also, it is unclear from the record if the heart murmur diagnosed in the past has resolved independently or if it is controlled with the use of medication. Accordingly, the Board finds that further development is needed on this matter.

The matters are REMANDED for the following action:

1. Obtain and associate with the record the sleep apnea study conducted in 2010. The Veteran indicates that the study was conducted at a private facility in Lawrenceburg, TN through a consult from the Murfreesboro, TN VAMC. All attempts to locate the records must be documented in the record. If the records are unavailable, such should be noted in the record. 

2. Obtain an addendum opinion to address the etiology of the Veteran's heart disability. Access to the electronic claims file must be made available to the examiner for review. If it is determined that an opinion cannot be entered without additional examination, such an examination must be scheduled in accordance with applicable procedures. 

As to the diagnosis of systolic heart murmur, the examiner is asked to address whether: (a) it is a chronic disability, (b) if the disability is not considered chronic, was there any functional impairment from the heart murmur, and (c) is the heart murmur asymptomatic because the Veteran is on medication to control it.

If the examiner concludes that the heart murmur caused functional impairment, he must then opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability had its onset in service or was caused by service to include exposure to herbicide in service, or whether it is at least as likely as not (1) proximately due to the service-connected PTSD, or (2) aggravated (a medically discernible increase in symptoms even if temporary) by the service-connected PTSD.  

The examiner must also review the Veteran's medication list and discuss for the record if the Veteran is prescribed medication for his heart to include Lisinopril. 

The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements, and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists.  

3. Obtain an addendum opinion to address the etiology of the Veteran's periodic leg movements also claimed as restless leg syndrome. Access to the electronic claims file must be made available to the examiner for review. If it is determined that an opinion cannot be entered without additional examination, such an examination must be scheduled in accordance with applicable procedures. 

The examiner must address whether the Veteran's periodic leg movements are the manifestation of a disability. If a disability manifested by periodic leg movements is diagnosed, the examiner must opine whether it is at least as likely as not that the disability is related to an in-service injury, event, or disease, or whether it is at least as likely as not (1) proximately due to the service-connected PTSD, or (2) aggravated (a medically discernible increase in symptoms even if temporary) by the service-connected PTSD.  

In doing so, the examiner must consider the medical literature submitted discussing restless leg syndrome and its link to psychiatric disorders. The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists.

4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal.  If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S. Willie

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.