Citation Nr: 21075332 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-35 124 DATE: December 20, 2021 REMANDED Entitlement to service connection for left lower extremity restless leg syndrome is remanded. Entitlement to service connection for right lower extremity restless leg syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2011 to February 2015. This appeal originated from a February 2016 rating decision, which denied service connection as relevant here for left and right lower extremity restless leg syndrome disability. The Veteran appealed the decision to the Board of Veterans' Appeals (Board) in March 2019. In September 2019, the Board denied the Veteran's claim for a left and right lower extremity RLS disability finding that there was no evidence of a current diagnosis. The Board also denied the service connection claim for asthma. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2020 order granting a Joint Motion for Remand (JMR), the Court vacated the Board's decision and remanded these claims to the Board for action consistent with the terms of the JMR. See August 2020 JMR. The parties agreed in the JMR that the Board relied on an inadequate VA examination in rendering its decision. Pursuant to the JMR, the Board remanded the claims in March 2021 for additional development. It now returns to the Board for further review. While on remand, the Regional Office (RO) granted service connection for obstructive sleep apnea with asthma in an August 2021 Rating Decision. As that award constitutes a full grant of the benefit sought with respect to that issue, the Veteran's respiratory claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Left lower extremity restless leg syndrome is remanded. 2. Right lower extremity restless leg syndrome is remanded. Although further delay is regrettable, the Board finds that a remand is necessary to provide the Veteran a VA examination in order to ensure compliance with the August 2020 JMR and the March 2021 Board remand. The parties to the August 2020 JMR agreed that the May 2017 VA medical opinion was inadequate. See August 2020 JMR. Specifically, the parties agreed that the May 2017 VA examiner did not provide a clear rationale for her medical opinion, improperly discounted Veteran's assertions, and failed to address the medical article regarding restless leg syndrome and toxic neuropathy. Id. Consequently, the parties agreed that the Board should obtain a new medical opinion. Accordingly, the Board remanded the claims in March 2021 for a new medical opinion for the Veteran's left and right leg restless leg syndrome disabilities. The Board directed the VA examiner to opine whether "the Veteran's restless leg syndrome of the right and/or left lower extremity is related to his active service or is caused or aggravate by military service, to include due to jet fuel exposure and/or environmental exposures." See March 2021 Board Remand. The Board also instructed the examiner to address the medical article entitled Toxic Neuropathy Clinical Presentation, the October 2015 sleep study, and the Veteran's reported difficulty sleeping due to his leg movements. Id. Pursuant to the Board remand, the Veteran was provided another VA examination in August 2021. See August 2021 Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ). The examiner confirmed a diagnosis of restless leg syndrome since 2018. Id. The examiner noted the Veteran's report that his condition began in service and that his leg symptoms awakened him at night have continued since. Id. The August 2021 VA examiner provided a negative nexus opinion for the Veteran's left and right lower extremity RLS. See August 2021 VA Medical Opinion DBQ. In support of his opinion, the examiner stated that the Veteran reported his legs "will jump at time and during sleep" and that the Veteran first became aware of condition during a 2015 sleep study. Id. The examiner also noted that there was no record that Veteran had RLS during active service, in concluding that the Veteran's left and right lower extremity RLS was less likely than not related to active service. The Board finds the August 2021 medical opinion does not comply with the March 2021 Board remand. Specifically, the examiner did not address whether the Veteran's current left and right lower extremity RLS were due to his jet fuel exposure and/or environmental exposures as directed in the remand. Additionally, the examiner did not address the medical article entitled Toxic Neuropathy Clinical Presentation in providing his medical opinion. Thus, the Board finds a remand is necessary in order to ensure compliance with August 2020 JMR and the March 2021 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) The Board also finds that the August 2021 VA medical opinion is inadequate for adjudication as it improperly relies on the absence of evidence, specifically a lack of treatment records. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015)(indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Thus, based on the foregoing, a remand is necessary to obtain an addendum medical opinion to determine the etiology of the Veteran's left and right lower extremity RLS. The matters are REMANDED for the following actions: 1. Obtain and associate with the electronic claims file any outstanding private or VA treatment records relating to the Veteran's claim following the procedures set forth in 38 C.F.R. § 3.159. 2. Forward the claims file to the August 2021 VA examiner if available, or a medical professional with appropriate experience to render an etiology opinion for the Veteran's left and right lower extremity RLS. The examiner must review the claims folder including this remand and acknowledge such review in the report. Based on review of the May 2017 and August 2021 VA examinations and medical opinions, the examiner is requested to address the following: Provide an etiology opinion for the Veteran's left and right lower extremity RLS disability(s). Assuming that the standard is at least as likely as not (50 percent probability or greater), is it possible that the Veteran's current left and right lower extremity RLS disability(s) could be related to or caused by due to jet fuel exposure and/or environmental exposures. (a.) In providing this opinion, the examiner must address the medical article entitled Toxic Neuropathy Clinical Presentation and state basis for agreement or disagreement with the article. Are the Veteran's assertions that his left and right lower extremity RLS disability(s) was caused by his in-service jet fuel exposure and/or environmental exposures consistent with medical knowledge or implausible with how the Veteran's left and right lower extremity RLS disability(s) is/are known to develop? Is it medically feasible that his current left and right lower extremity RLS disability(s) was caused by his in-service jet fuel exposure and/or environmental exposures? (b.) If not, state why not and on what basis this conclusion was made. (c.) If so, state why and on what basis this conclusion was made. In offering this opinion, the examiner must address the Veteran's lay statements of record indicating in-service symptoms and the Veteran's statements regarding continuity of symptomatology. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 3. Review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.