Citation Nr: 21023898 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-30 720 DATE: April 21, 2021 ORDER For the entire period on appeal, an initial rating of 30 percent, and no higher, for restless leg syndrome (RLS) is granted. FINDING OF FACT For the entire period on appeal, due to frequency and severity, the Veteran’s RLS is severe in degree. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating of 30 percent, and no higher, for RLS have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 8199-8103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1965 to June 1970. He subsequently joined the Army Reserve National Guard and served on active duty from November 1988 to June 1989, and from September 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In a November 2019 decision, the Board denied a compensable evaluation for RLS prior to June 17, 2013, and granted a 10 percent evaluation from June 17, 2013 forward. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Veteran, through his representative, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand (Motion). In an August 2020 Order, the Court granted the Motion and remanded the case to the Board. For the entire period on appeal, an initial rating of 30 percent, and no higher, for restless leg syndrome (RLS) is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. In their July 2020 Motion, the parties to the Motion determined that the Board’s decision should be vacated and the claim remanded to allow the Board to discuss how it reached its conclusion with consideration of the frequency and severity of the Veteran’s symptoms or the muscle groups involved. The parties further indicated that the Board incorrectly considered the ameliorative effects of the Veteran’s medication, considering the Court has held that the Board may not deny entitlement to a higher disability rating on the basis of the relief provided by medication, unless the effects of such medication are specifically contemplated by the rating criteria in question. Jones v. Shinseki, 26 Vet.App. 56, 63 (2012). January 2013 rating decision on appeal granted service connection for RLS, evaluating the condition analogously and assigning an initial noncompensable, or zero percent, disability rating, effective from May 18, 2004. During the course of this appeal, in an October 2018 rating decision, the RO granted a higher 10 percent disability rating for RLS, effective September 26, 2018. Later, a November 2019 Board decision found that a 10 percent rating should be effective from June 17, 2013 forward. After a review of the evidence of record, lay and medical, affording reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating is warranted for the Veteran’s RLS for the entire initial rating period on appeal. There is no diagnostic code dedicated to rating restless leg syndrome. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case, the RO has rated the Veteran’s disability due to restless leg syndrome under Diagnostic Code (DC) 8199-8103. See 38 C.F.R. § 4.124a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 8199 is used to evaluate unlisted miscellaneous neurological conditions and convulsive disorders that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board observes that the symptoms described by lay and medical evidence is analogous to convulsive tic under Diagnostic Code (DC) 8103. Under DC 8103, mild convulsive tics are noncompensable, moderate convulsive tics are 10 percent disabling, and severe convulsive tics are evaluated as 30 percent disabling. The note to this rating code indicates that these characterizations are dependent upon the frequency and severity of the symptoms and muscle groups involved. See 38 C.F.R. § 4.124a. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as “severe” by VA examiners and others, 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 regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Throughout the relevant period, the Veteran has experienced jerking, leg spasms, and twitching during the day. His symptoms increase in severity at night, causing sleep disturbance, which results in daytime insomnolence. The Veteran has consistently taken prescribed medications that provide relief and help him to sleep. A February 2002 VA mental health report notes the Veteran’s complaint of jerking movements of his legs, especially at night, but also some during the day. In September 2002, the Veteran underwent a sleep study at Carraway Methodist Medical Center Sleep Disorders Laboratory. During the sleep study, the examiner wrote that during observation “frequent leg movements were seen while awake, falling asleep, and while asleep with an index of 89 episodes per hour. An October 2012 VA Gulf War Medical Examination notes the Veteran’s RLS diagnosis and indicates that the Veteran has been accused of kicking his sleeping partner and putting the bed linens in disarray when not on his medication. The Veteran’s private treating physician submitted a statement in June 2013 opining that the Veteran’s RLS produces significant symptoms that can interfere substantially with rest during sleep at night, affecting daytime alertness, attention, and overall well-being. The Veteran was afforded a VA examination to determine the current severity of his RLS in September 2018. The Veteran reported symptoms of twitching and an intermittent burning sensation. The examiner noted sleep disturbance as a result of the Veteran’s RLS, and a worsening of the Veteran’s symptoms. In light of the evidence listed above, and given the frequency and severity of the Veteran’s RLS, the Board has resolved all doubt in favor of the Veteran and finds that his disability should be rated as a severe disability bilaterally. 38 C.F.R. § 4.1. As this is the highest rating that can be assigned, the claim is consequently granted in full. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.