Citation Nr: 21070973 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-41 853 DATE: November 29, 2021 REMANDED Entitlement to service connection for a bilateral leg condition, to include as secondary to sleep apnea, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1985 to February 1986 and from October 2001 to September 2002. The Veteran also served in the Air National Guard of Wisconsin from June 1985 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in July 2021. 1. Entitlement to service connection for a bilateral leg condition, including as secondary to sleep apnea The Veteran contends that he has a bilateral leg condition as a result of his service. The Veteran claims that his bilateral leg condition began in about 2000, when he was deployed to Qatar with the National Guard. He contends that the cause of his bilateral leg condition is the bromide tablets and anthrax vaccines he was required to take for his deployment, and his exposure to burn pits while deployed in Colombia. The evidence of record includes private treatment records from August 2013 showing that the Veteran was diagnosed with periodic limb movement. Private treatment records from December 2014 show that the Veteran was diagnosed with restless leg syndrome. The August 2013 private examiner noted that the Veteran's periodic limb movement could be related to his untreated obstructive sleep apnea. As such, the Board finds that a secondary theory of entitlement has been raised by the record and the issue has been amended accordingly. However, the Board cannot award service connection on a secondary basis based on the August 2013 opinion as it is speculative and is not supported by rationale. In support of his claim, the Veteran submitted lay statements from his wife and fellow service-members regarding the onset of symptoms in his legs. An August 2013 statement from a fellow service-member notes that he served with the Veteran on several deployments to include Italy in 1997, Qatar in 1999, and Operation Noble Eagle in 2002. The service-member indicated that the Veteran would snore while sleeping and seemed to engage in "an excessive amount of kicking, tossing, and turning." A September 2013 statement from the Veteran's spouse indicates that the Veteran's leg movements became more frequent in 2002 and usually occurred while the Veteran is sleeping and "has a lapse in breathing." The Veteran's claims file contains two DD-214's indicating active duty service from September 1985 to February 1986 and from October 2001 to September 2002. However, the Veteran's claims file does not include any other DD 214's indicating additional active duty service. Both documents indicate that the Veteran has not had any foreign service. Additionally, the Veteran's military personnel records do not contain a Record of Assignments reflecting the Veteran's claimed foreign deployments. The Veteran contends that he deployed overseas on at least eight occasions throughout his career and should have corresponding DD-214's for such. See March 2015 correspondence. In correspondence submitted in April 2016, the Veteran noted that he was deployed to Italy in September and October 1996, Columbia in February 1998, and Qatar in June 1999 and July 2000. However, the Board notes that the evidence of record is not clear regarding whether the Veteran was in fact deployed to Qatar or Columbia, and whether this would constitute active duty service, active duty for training (ADT) or inactive duty for training (IADT) for VA disability compensation purposes. The Veteran's duty status during his National Guard service in 2000, which is when he claimed his bilateral leg condition began, will impact his claim. See generally 38 C.F.R. § 3.204(c). The Veteran's medical records from his time in the National Guard show that on a November 1994 examination (during a period of IADT), he was noted to have cramps in his legs after overuse or strenuous activities and he was noted to have occasional night-time cramps. In an April 2021 statement, the Veteran stated that his leg cramps were due to lifting weights and being athletic and are a very different condition than his leg condition that began in 2000. However, the Board finds that the record is unclear regarding whether the Veteran had a pre-existing bilateral leg condition before his claimed deployment to Qatar in the year 2000. The Board acknowledges the January 2016, February 2018, and January 2020 private opinions linking the Veteran's bilateral leg condition to his service. However, as the opinions are not supported by adequate rationales, and it is unclear what the Veteran's duty status was in 2000. As such, the issue must be remanded in order to verify the Veteran's periods of service during his claimed deployments. Additionally, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a bilateral leg condition because no VA examiner has opined whether this is due to his service or secondary to his service-connected sleep apnea. The matters are REMANDED for the following action: 1. The Veteran contends that he had multiple deployments. Contact the appropriate records repository and request verification of whether the Veteran was on active duty, active duty for training (ADT) or inactive duty for training (IADT) in 1990, 1993, 1994, 1995, September and October 1996, July 1997, February 1998, June 1999, and July 2000. If the Veteran was on active duty during any of the times mentioned above, obtain the DD 214 for this period of active service and any other periods of active service. Ensure that all periods of his active duty service are verified. If determinations of active duty, ADT, or IADT cannot be determined for these dates, the Veteran's Leave and Earning Statement or pay records for this time period should be requested from the Defense Finance and Accounting Service or another appropriate records repository, along with a description of what the various duty status codes on any report mean. A simple retirement points summary will not satisfy this instruction unless it clearly shows duty status. 2. Schedule the Veteran for an examination by an appropriate clinician for his claimed bilateral leg condition. The claims file should be made available for review. The examiner should provide an opinion on the following: a) Did a bilateral leg condition clearly and unmistakably (undebatable) preexist any period of active duty, ADT, or IADT? b) If the examiner finds a bilateral leg condition did clearly and unmistakably preexist the Veteran's period of service, was it clearly and unmistakably not aggravated by service? i) Stated another way, did a bilateral leg condition, which existed prior to the Veteran's period of service, at least as likely as not increase in severity during service? ii) If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? c) If the examiner finds that a bilateral leg condition either did not clearly and unmistakably preexist a period of service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not that a bilateral leg condition is related to a period of service. d) Is it at least as likely as not that the Veteran's bilateral leg condition was caused by his service-connected sleep apnea? e) If not, is it at least as likely as not that the Veteran's bilateral leg condition was aggravated by his service-connected sleep apnea? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.