Citation Nr: 21028614 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-43 117 DATE: May 11, 2021 ORDER Entitlement to a compensable rating for restless leg syndrome (RLS) is denied. FINDING OF FACT The Veteran is not shown to have had any (more than mild) symptoms of/impairment due to RLS that are not considered in (encompassed by) the rating for another co-existing service-connected disability; moderate RLS manifestations not encompassed by a rating for other service-connected disabilities are not shown. CONCLUSION OF LAW A compensable rating for RLS is not warranted. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.20, 4.124(a), Diagnostic Codes (Codes) 8199-8103. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from March 1988 to March 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 Department of Veterans Affairs (VA) rating decision that granted service connection for RLS, rated 0 percent, effective April 1, 2012. In July 2020, the matter was remanded by the Board for development. Entitlement to a compensable rating for RLS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a claim for a higher evaluation stems from the rating assigned with the grant of service connection, multiple ("staged") ratings may be assigned for different periods when the severity of the disability varied, based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding severity of disability is to be resolved in the claimant's favor. 38 C.F.R. §4.3. The rating schedule does not contain a specific Code for rating RLS. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the rating schedule that most closely identifies the part or system of the body involved; the last two digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one Code requires the use of an additional Code to identify the basis for the rating assigned. See 38 C.F.R. § 4.27. Here, the 0 percent rating for restless leg syndrome had been assigned under Code 8199-8103 (for undiagnosed neurological disability by analogy to convulsive tic). The Board agrees that Code 8103 represents the most appropriate rating, as the primary manifestation of the disability is an involuntary leg movement (which is similar to a convulsive tic). Under Code 8103, convulsive tics are rated 30 percent when severe, 10 percent when moderate, and 0 percent when mild. A note following explains that the characterization of the severity depends on frequency, severity, and muscle groups involved. 38 C.F.R. § 4.124A. The Board notes that the words "mild," "moderate and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the adjudicator must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision addressing a claim for an increased rating. Assignment of separate ratings for the same symptoms and impairment under various diagnoses is prohibited. 38 C.F.R. § 4.14. At the outset, it is noteworthy (considering contentions raised) that the Veteran has established service connection for bilateral plantar fasciitis, from April 2012; a right knee disability, from April 2012; primary insomnia, from April 2012; and obstructive sleep apnea (OSA), from August 2014; which are separately rated (and those ratings are not for consideration herein). The Veteran's service treatment records (STRs) show that RLS was found on a sleep study conducted in service to assess his complaints of fatigue. The sleep study found disturbed sleep due to periodic limb movements of sleep with an arousal index of 23.2 leg jerk arousals/hour, and insufficient sleep syndrome. Medication (ultimately Mirapex) for treatment of restless leg syndrome was prescribed for the remainder of his service. On April 2012 VA peripheral nerve and central nervous system examination, it was found that the Veteran did not have peripheral nerve impairment, gait impairment, or muscle strength impairment due to RLS. [He was wound to have impaired gait due to plantar fasciitis.] It was noted that due to the RLS he had insomnia (for which he was started on medication in service, with the medication ultimately becoming Mirapex -which provided relief for the insomnia). On review of the claims file and examination of the Veteran, the examiner found that RLS did not result in any impact on his occupational functioning. In his October 2013 notice of disagreement (NOD), the Veteran asserted that his RLS, along with his service-connected right knee disability, affect his gaits. On May 2014 split night sleep study no periodic limb movement or periodic limb movement arousal was found; OSA was diagnosed, and a CPAP machine was prescribed. An August 2014 private treatment record reflects that the Veteran reported improvement in his RLS symptoms since starting CPAP. In his November 2015 substantive appeal, the Veteran asserted that although his RLS was reduced in severity with use of a CPAP device, impairment due to RLS from retirement to the diagnosis of OSA was not considered. On September 2015 CNS VA examination (for RLS), the Veteran reported that his medications continued to help significantly with his sleep movements and restlessness. He indicated that his wife reports that she has not noted kicking or movements of his legs at night. His gait was noted to be normal and no extremity muscle weakness was found. The examiner found that the RLS did not impact on occupational functioning. An October 2015 VA knee examination found that the Veteran had an antalgic gait due to a knee disability. On October 2020 VA examination to assess the severity of the Veteran's restless leg (conducted pursuant to the July 2020 Board remand), the Veteran reported that since he started receiving treatment for OSA with a CPAP, his restless leg has gone away. His gait was normal. and no extremity muscle weakness was found. The examiner noted that functional impact that could result from RLS would impact on activities that require concentration, decision making and difficulty staying awake during the day if the Veteran was kept awake at night due to RLS. However, the examination found no sleep disturbances due to RLS. The Board observes at the outset of the analysis that the prohibitions against pyramiding in 38 C.F.R. § 4.14 are critical in this matter, particularly in the early part of the period for consideration on appeal (since per the Veteran's own reports on recent examinations and his wife's observations the RLS primary manifestations, involuntary leg movements at night that result in disturbed sleep. have resolved. Essentially, it has been argued variously during the pendency of the appeal that types of impairment that have resulted from the Veteran's RLS have included right knee impairment, sleep disturbances due to involuntary leg movements during sleep (with resulting impact on daytime activities), and gait impairment. The October 2020 VA examiner has acknowledged that RLS (which keeps one awake at night) may impact on daytime activities that require concentration, decision-making, and staying-awake. Throughout the period for consideration the Veteran has been assigned a 30 percent rating for his service-connected primary insomnia (with impaired concentration and decision-making, and difficulty staying awake). Accordingly, a separate rating for such symptoms under the RLS diagnosis is prohibited under 38 C.F.R. § 4.14. [The Board notes incidentally that difficulty staying awake in the daytime is also considered in the rating for OSA, but is not relying on such for the determination herein.]. The Board has considered whether alternatively rating those manifestations under the diagnosis of RLS would be more appropriate, but finds it is not, since the maximum rating under Code 8103 is 30 percent which is the rating already assigned. Continuing with the analysis, the Board notes that any gait impairment the Veteran may have has been attributed to his bilateral plantar fasciitis, which is rated 50 percent. As any such symptoms/impairment are encompassed by the rating for a co-existing service-connected disability (rated throughout at a level higher than the maximum rating afforded under Code 8103), consideration of a separate rating under an alternate code is not appropriate. Regardless, examiners of record have not found impaired gait to be a manifestation of RLS. The etiology for a symptom such as gait impairment is a medical question. See Jandreau v. Nicholson, 492 F 3d 1372, 1377 (Fed Cir. 2007). The Veteran is a layperson, and his own opinion is not competent evidence in this matter. The Veteran's right knee disability is encompassed in the rating assigned for his right knee arthritis. He does not point to any right knee symptoms or impairment that are attributable to RLS and not considered in that rating. Knee examinations in the record have not identified any such manifestations. Considering the foregoing, the Board observes that the types of manifestations and impairment that might potentially warrant a separate compensable rating for RLS (because they are not already encompassed by ratings for other co-existing service-connected disabilities) might be e.g., peripheral nerve impairment, with related lower extremity muscle weakness or sensory changes (if diagnosed and found to due to RLS). However, here such pathology and impairment are not shown. VA peripheral and central nerve examinations have consistently not found such manifestations/impairment. Considering the disability picture of the Veteran's RLS throughout the period for consideration (since his discharge from active duty), the Board finds that at no time is he shown to have had any compensable manifestations attributable to the disability that are not already considered (encompassed) by another diagnosed service-connected disability (that provides for at least an equal, if not higher, schedular rating). Also, as noted above with respect to the more recent disability picture presented, the RLS manifestations are shown to have resolved. Therefore, the preponderance of the evidence is against this claim. The benefit-of-the-doubt rule does not apply. The appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, Associate 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.