Citation Nr: 21030098 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-61 706 DATE: May 17, 2021 REMANDED Entitlement to service connection for restless leg syndrome of the left and right lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to February 2000 and from September 2001 to May 2003 and had additional service in the reserves. This claim previously was before the Board of Veterans 'Appeals (Board) and denied in an October 2019 decision. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In an April 2020 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication in accordance with agreement in the JMR. In December 2020, in furtherance of that, the Board, in turn, remanded the claim back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). Unfortunately, however, there has not been compliance including acceptable substantial compliance, with the Board's remand directives, requiring another remand of this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). These claims of entitlement to service connection for restless leg syndrome of the left and right lower extremities are again remanded. The prior December 2020 Board remand was to have the Veteran undergo a VA compensation examination concerning his claim since his lay statements attested to having had symptoms of restless leg syndrome both during and since his service. To this end, the remand directive asked that, in providing this opinion, the VA examiner "explicitly discuss any lay statements noted by the Veteran with regards to in-service incurrence of his disability." The Veteran underwent a VA examination in March 2021 for this needed medical opinion. The examiner recorded the Veteran's reported onset of restless leg syndrome symptoms in 1993, so during his service. But, in providing the requested opinion, the examiner did not elaborate on the Veteran's reported onset of symptoms in service. Instead, the examiner focused on the length of time between the Veteran's separation from service and his eventual diagnosis of restless leg syndrome some 12 years later, without addressing whether his symptoms during service and reportedly continuing after his service (even if not treated) were related to his eventual diagnosis of restless leg syndrome. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating a VA examiner may not generally rely on the absence of evidence as necessarily negative evidence). As a general proposition, the lack of evidence cannot be treated as substantive negative evidence. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). So, the mere absence of documentation of the condition now being claimed, such as in the way of treatment records, is one factor in determining whether the condition being claimed incepted during the Veteran's service or is otherwise related or attributable to his service. But this cannot be the sole or exclusive reason for disassociating the condition from the Veteran's service. 38 C.F.R. § 3.303(d). In other words, there must be explanation of why it is reasonable to have this expectation of documented treatment prior to initial diagnosis and must consider the Veteran's lay statements regarding the history of the claimed condition, including during the intervening years. For this reason, the Board finds there has not been substantial compliance with the prior December 2020 remand directive mandating the examiner explicitly discuss the Veteran's lay statements concerning his symptoms during and since service. Thus, the Board must correct this failing before deciding the appeal of this claim. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left and right lower extremity restless leg syndrome incepted during his service or is otherwise related or attributable to his service. *In making this determination, the examiner again is asked to explicitly discuss the Veteran's lay statements that his restless leg syndrome symptoms began in 1993, so during his service, have persisted in the years since, and are related to his eventual diagnosis of restless leg syndrome. Thus, if, as the prior March 2021 VA examiner apparently considered significant, the absence of any objective indication of this condition in the interim during the 12 or so years following conclusion of the Veteran's service before initial diagnosis, there must be more explanation of why it is reasonable to have this expectation, such as in the way of treatment. Therefore, rationale for the opinion is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.