Citation Nr: 21011175 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 08-36 353 DATE: March 1, 2021 ORDER Entitlement to service connection for bilateral leg disorder is denied. REMANDED Entitlement to service connection for insomnia is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a bilateral leg disorder due to an incident, injury or disease in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral leg disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1969 to May 1971. These matters were previously before the Board of Veterans’ Appeals (Board) in February 2017 and remanded by a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. By rating decision dated in January 2021, service connection was granted for migraine headaches with dizziness and assigned a 30 percent rating effective July 31, 2013. As this was a full grant of the benefit sought the matter of service connection for migraine headaches is no longer before the Board for appellate consideration. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that service connection is warranted for his bilateral leg disorder because it originated in service. A review of his May 1971 service separation medical history report shows he indicated on the report that he had cramps in his legs. However, on clinical evaluation at his May 1971 service separation medical examination, his lower extremities were normal. The medical provider who conducted the evaluation reported the Veteran had cramps in his legs with exercise and noted there were no complications or sequela. Also, his service treatment records are negative for any complaints, treatment, or diagnosis of a bilateral leg disorder or any related symptoms. On further review, the Board finds that the earliest post-service treatment records in the Veteran’s claims file are VA treatment records dated in 2003 and do not mention a bilateral leg disorder. The earliest date of treatment records that reference a leg condition is in January 2004, which shows the Veteran had tenderness in the lower spine and pain that radiated down his right leg. There is no mention of any other bilateral leg disorder. This evidence reveals that it was more than 30 years after the Veteran’s separation from service that there is any mention of a leg condition in the record. The absence of any medical records of a diagnosis or treatment for a lengthy period such as here, is probative evidence against the claim. Furthermore, this evidence shows that cramps in the legs first noted in the Veteran’s service separation examination report appear to have been acute and transitory and resolved without residuals. Consequently, service connection for a bilateral leg disorder on the basis that a bilateral leg disorder became manifest in service and has persisted is not warranted. Although VA treatment records associated with the Veteran’s claims file reveal that he had leg cramps, such records provide no nexus between service and the Veteran’s currently diagnosed bilateral leg disorder. For example, in June 2018 the Veteran was seen at a VA outpatient clinic for an initial evaluation and enrollment into primary care. On evaluation of the extremities, periodic leg cramps were noted. The impression was chronic low back pain with periodic leg cramps. While there is a current impression of leg cramps, there is no reference to any relationship to cramps in the legs noted on the Veteran’s service separation examination more than 45 years earlier. In December 2020 the Veteran was afforded a VA-contract knee and lower leg conditions examination. The Veteran reported the onset of his bilateral leg disorder was 1974, which is 3 years after his discharge from service in 1971. He stated he began having random pain and cramping in his legs. He reported cramping and tightening consistent with “charley-horse” pain in his calf muscles and up and down his legs. He currently experiences severe intermittent bilateral leg pain, cramping, stiffness and soreness. Following examination of the Veteran’s legs, the examiner diagnosed bilateral lower extremity spasticity. The examiner noted the Veteran has notable tightness and spasticity in his lower extremities. The examiner noted that the diagnosis is based on subjective complaints along with physical examination noting spasticity in his bilateral lower extremity. The examiner opined that the Veteran’s bilateral leg disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner reasoned that during service the Veteran’s bilateral leg cramping was acute only. There was no evidence of chronicity of care related to cramping and spasticity in the legs. The examiner noted that she was unable to differentiate leg pain noted in service and the reported pain from radiculopathy. The examiner concluded that a nexus had not been established. The Board finds this opinion to be highly probative evidence in this case because the examiner examined the Veteran, reviewed the claims file, cited to relevant evidence of record, and provided a clear rationale for the opinion consistent with the medical record. Based upon the evidence of record, the Board finds that service connection is not warranted, as no bilateral leg disorder is shown to have manifested as a result of an incident, injury, or disease during active service. The medical evidence of record as a whole supports that there is no etiological relationship between the Veteran's current bilateral lower extremity spasticity and his military service. The Board has considered the Veteran's assertions that his bilateral leg disorder is related to service. While the Veteran believes this to be so, he is not competent to provide a nexus opinion in this case. The record does not show that the Veteran has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. Accordingly, a preponderance of the evidence weighs against the Veteran's claim and service connection for a bilateral leg disorder must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND The Veteran was afforded a VA-contract examination in January 2020 to evaluate his claimed insomnia disorder. The examiner concluded that the Veteran’s insomnia disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the record and appeals indicate there is no mental health condition including insomnia that is service connected; therefore, no current mental health condition including insomnia is connected to the Veteran’s insomnia during service in the early 1970s. The Board concurs with the Veteran’s attorney that the examiner’s opinion is not adequate for deciding this claim. As such, a remand is necessary for an addendum opinion that includes a rationale that addresses whether there is a nexus between the Veteran’s in-service insomnia and his currently diagnosed insomnia. In addition, the addendum opinion must consider the Veteran’s past medical history and prior examinations in formulating the opinion and discuss continuity of the Veteran’s symptoms after service in relation to insomnia during service. The matter is REMANDED for the following action: Obtain an addendum opinion addressing the nature and etiology of the Veteran’s recurrent insomnia disorder from the same examiner who provided the January 2020 medical opinion, or another medical provider if that examiner is unavailable. The claims file must be made available to the examiner, including a copy of this Remand. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed recurrent insomnia disorder is related to an in-service incident or injury or caused by or otherwise etiologically related to his active service. The examiner must consider and discuss the Veteran’s “occasional insomnia” noted in his May 1971 separation medical examination report. In addition, in formulating the opinion, the examiner must review the Veteran’s past medical history and prior examinations and discuss continuity of the Veteran’s insomnia after service in relation to insomnia during service. A detailed rationale for any opinion expressed should be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.