Citation Nr: 21029051 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-34 673A DATE: May 12, 2021 ORDER Entitlement to service connection for restless leg syndrome, to include Gulf War exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that restless leg syndrome is related to service, to service-connected disabilities, or to Gulf War exposure. CONCLUSION OF LAW The criteria for service connection for restless leg syndrome are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to May 2003 and from October 2004 to December 2005 with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in November 2019 for additional development to include a new VA examination. A March 2020 VA examination was obtained. However, in an October 2020 Board decision, the Board found that portions of the directives of the November 2019 Board decision were not complied with. The Board remanded the matter for further development, to include obtaining an addendum opinion. An addendum opinion was provided in October 2020. The Board is satisfied that the prior remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection laws and regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For certain chronic disease, such as restless leg syndrome (an organic disease of the nervous system), there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(1). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a "qualifying" chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term "objective indications of chronic disability" includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Functional gastrointestinal disorders (excluding structural gastrointestinal diseases); Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(4). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for restless leg syndrome The Veteran contends that his restless leg syndrome is secondary to his service-connected upper airway resistance syndrome. Alternatively, he asserted in a January 2011 Statement in Support of Claim that his restless leg syndrome is the result of Gulf War exposure. The Veteran's DD Form 214 shows that he served in Southwest Asia from December 2004 to November 2005. Therefore, he is a 'Persian Gulf veteran' as defined by regulation. See 38 C.F.R. §3.317 Turning to the evidence of record, service treatment records (STRs) show no complaints, diagnosis, or treatment related to a restless leg syndrome. In fact, a May 2002 enlistment examination, February 2005 post deployment health assessment, November 2005 post deployment health assessment, and a November 2007 report of medical examination are silent as to restless leg syndrome. A sleep study in December 2009 does not indicate restless legs or limb movements. A private sleep study in February 2010 noted "periodic leg movements with an arousal rate of 8.0 per hour, not persisting at the optimal pressure." There was no diagnosis of restless leg syndrome. The July 2011 VA examination does not include a diagnosis of restless leg syndrome. In April 2013, he underwent a VA Gulf War General Medicine Examination which included a review of the claims file and medical records, recounted the Veteran's complaints and history, and included a physical examination of the Veteran. The examiner determined there was no diagnosis of restless leg syndrome. The examiner opined that there is no ability to connect restless leg syndrome with any specific exposure while in Southwest Asia because it is unlikely, based on the December 2009 and February 2010 sleep studies which did not document or diagnose restless leg syndrome, that the Veteran has this condition. In an April 2013 primary care note, the Veteran reported cramps in legs at times. A March 2020 VA examination report noted review of the e-folder and included a physical examination of the Veteran. There was a diagnosis of restless leg syndrome. The examiner characterized restless leg syndrome as a disease with a clear and specific etiology and diagnosis. He opined that restless leg syndrome was less likely than not (less than 50 percent probability) incurred in or caused by the service in Southwest Asia. The rationale provided was that restless leg syndrome was not documented to exist in this Veteran by sleep study, or patient records. Regarding aggravation, the examiner opined restless leg syndrome is not at least as likely as not aggravated beyond its natural progression by his service-connected Achilles tendon ruptures or injuries, migraine headaches, irritable bowel syndrome, post-traumatic stress disorder, right shoulder injuries, lumbosacral strain, ankle scars, hypertension, pseudofolliculitis barbae, erectile dysfunction, or right foot plantar warts. The rationale provided was that there is no medical correlation linking these service-connected disabilities to restless leg syndrome. Likewise, the examiner opined restless leg syndrome is not at least as likely as not proximately due to or the result of Achilles tendon ruptures or injuries, migraine headaches, irritable bowel syndrome, post-traumatic stress disorder, right shoulder injuries, lumbosacral strain, ankle scars, hypertension, pseudofolliculitis barbae, erectile dysfunction, or right foot plantar warts. The rationale provided was that there is no medical correlation linking these service-connected disabilities to restless leg syndrome. Regarding secondary service connection, the examiner opined restless leg syndrome is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connection upper airway syndrome. The examiner explained, "I am not aware of any medical literature that states restless leg syndrome is worsened by upper airway resistance syndrome." An October 2020 VA addendum opinion was obtained. The examiner reported review of all available records, to include the Veteran's e-folder and electronic health records. The examiner opined he was unable to state with 50 percent or greater probability (less likely than not) that the Veteran's restless leg syndrome is related to active duty service exposures because there was no documentation of symptoms or diagnosis of said condition in the service medical records reviewed. Regarding secondary service connection, the examiner opined is it less likely than not that restless leg syndrome is secondary to his upper airway resistance syndrome. In support of this conclusion, the examiner did consider literature about "the association of upper airway resistance syndrome with periodic leg movement" and its possible link to restless leg syndrome, but was unable to find consistent evidence of upper airway resistance syndrome causing restless leg syndrome. Regarding aggravation, he opined that restless leg syndrome was less likely than not aggravated beyond natural progression by his service-connected upper airway resistance. Again, reasoning that records and literature did not indicate this link. Likewise, he opined that it is less likely than not that any other service-connected disability caused his restless leg syndrome. Lastly, he opined it is less likely than not that his restless leg syndrome is aggravated beyond natural progression by his service-connected conditions as medical records reviewed did not support this association and neither do pathophysiologic relationships. After a review of all of the evidence, the Board finds the preponderance of the evidence is against finding service connection for restless leg syndrome on a direct basis, secondary basis, or as due to a chronic qualifying illness related to Persian Gulf War service. As an initial matter, for certain chronic diseases, such as restless leg syndrome, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, consistent with the evidence described herein, presumptive service connection is not warranted because the Veteran is not shown to have been diagnosed with restless leg syndrome within one year of separation from service; nor is there credible medical evidence of continuity of symptomatology from separation of service until he was diagnosed with each disability. Here, the Veteran was not diagnosed with restless leg syndrome until March 2020, 19 years after active service. According to the March 2020 VA examiner, restless leg syndrome is a disease with a clear and specific etiology and diagnosis. Since it is a diagnosed disability that can be medically explained, service connection for an undiagnosed illness or medically unexplained chronic multi-symptom illnesses is not warranted due to service in Southwest Asia. See 38 C.F.R. § 3.317. The Board finds persuasive the opinions of the of the July 2011, March 2020, and October 2020 VA examiners regarding direct service connection. The examiners unanimously opined restless leg syndrome was less likely than not incurred in or caused by service in Southwest Asia because there was no documented evidence of symptoms or diagnosis in the STRs. There is no medical evidence to contradict these findings. Moreover, the Board finds persuasive the opinions of the of the March 2020 and October 2020 VA examiners regarding secondary service connection. The examiners together opined restless leg syndrome is less likely than not proximately due to, or the result of, or secondary to the Veteran's service-connected upper airway resistance syndrome. Both examiners highlighted that restless leg syndrome being worsened or caused by upper airway resistance syndrome is not found in current medical literature. Further, in regards to aggravation, both the March 2020 and October 2020 VA examiners opined restless leg syndrome is not at least as likely as not aggravated beyond its natural progression by either upper airway resistance syndrome or one of his other service-connected disabilities due to the fact that there is no medical correlation linking any of his service-connected disabilities to restless leg syndrome. The Board finds the opinions of both examiners to be probative, and does not find any medical evidence in the record to contradict these findings. In sum, the evidence of record does not support a finding of restless leg syndrome on a direct basis, secondary basis, or as due to a chronic qualifying illness related to Persian Gulf War service. Indeed, the only evidence of a medical nexus between his current disability and active duty service or exposure during the Gulf War are the Veteran's own statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson, 581 F.3d at 1316), but VA can give lay evidence whatever weight it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may believe his restless leg syndrome is related to active duty service and may be caused by Gulf War exposure or secondary to a service-connected disability, he is not competent to make such a medical determination. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are not capable of lay observation and his contentions are of little probative value. Accordingly, and absent evidence to the contrary, the evidence of record does not support a finding of direct or indirect service connection, or as due to a chronic qualifying illness related to Persian Gulf War service. Therefore, the Board finds that restless leg syndrome is not related to service and is not related by causation or aggravation to a service-connected disability, or to exposure during the Gulf War. In light of these findings, the Board concludes that service connection for the claimed restless leg syndrome is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.