Citation Nr: 23015083 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 18-55 423 DATE: March 14, 2023 ORDER Entitlement to service connection for bilateral restless-leg syndrome (RLS), to include as a result of exposure to an herbicide agent, is denied. FINDING OF FACT The evidence of record shows that RLS was not incurred during active service, it is not caused by an event, injury or disease occurring in active service, to include exposure to an herbicide agent, and it did not manifest to a compensable degree within the applicable presumptive period. CONCLUSION OF LAW The criteria for service connection for RLS, to include as a result of exposure to an herbicide agent, are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1968 to June 1972. This appeal is again before to the Board of Veteran's Appeals (Board), arising from an October 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). When first before the Board in August 2019, it remanded the matter for evidentiary development, specifically, verification of exposure to an herbicide agent during active service. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38C.F.R. §3.303(a). Establishing service connection generally requires competent evidence of three things: (1) Current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Additionally, under 38 C.F.R. § 1116B (a) of the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), effective January 1, 2020, the presumption of herbicide exposure remains applicable to veterans having served in Korea at or near the demilitarized zone (DMZ) during a period of exposure now extended to the period beginning on September 1, 1967, and ending on August 31, 1971, notwithstanding there is no record of evidence of disease during the period of such service. The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). To benefit from the presumption of service connection for diseases associated with herbicide-agent exposure, the Veteran must have one of the diseases set forth in 38 C.F.R. § 3.309 (e). However, when diseases do not appear under the regulation, a veteran can still proceed to establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Entitlement to service connection for bilateral RLS, to include as due to exposure to an herbicide agent. The Veteran contends he was exposed to Agent Orange while serving on active duty in the United States Territory of Guam from October 1970 to June 1972. He further contends this exposure is the cause of his current disorder of bilateral RLS. In its August 2019 Remand, the Board noted that active service on the island of Guam does not presume exposure to an herbicide agent, to include Agent Orange, nor is RLS a listed disease for which service connection can be presumed under regulation. See 38 C.F.R. § 3.309 (e). As the AOJ had not made any attempts regarding verification of the Veteran's herbicide agent exposure in the places other than the Republic of Vietnam and the Korean DMZ, the Board directed there be attempts at verification of exposure in the time period and location in which the Veteran was stationed in Guam. The Board further directed that, after completion of the requested development to the extent possible, the AOJ obtain a VA examination, "if deemed warranted." The service treatment records (STRs) show, in five in-service examinations, to include a May 1972 separation examination, the Veteran's lower extremities were found to be normal. In addition, the Veteran reported no past or current lameness or paralysis. In October 1970, the same month as his posting to the naval magazine installation on the island of Guam, the Veteran presented with complaints of a "numb feeling" and soreness of the left knee, adding that the symptoms had been "off and on" since October 1970. The in-service treatment provider's diagnostic impression was chondromalacia. In January1971, as symptoms persisted, a treatment provider's impression was "probable chondromalacia." The post-active-service record shows, in December 1997, after a cursory examination at VA, the treatment provider noted the Veteran's motor system was grossly intact and without discernible weakness and he demonstrated normal strength. Later in December 1997, the Veteran presented to VA with complaints of occasional leg cramps. A July 2018 private medical statement of Dr. C.C.H. states the Veteran has been prescribed a medication for RLS. In its July 2020 Memorandum, VA conceded exposure to an herbicide agent based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. 38 C.F.R. § 1116B (a). The AOJ in its Supplemental Statement of the Case (SSOC) later in July 2021 noted the foregoing, but concluded, in addition to RLS not being included on the list of eligible diseases for service connection, the available scientific and medical evidence does not support the conclusion that RLS is associated with herbicide exposure. Moreover, the above summary of the record does not offer a single piece of evidence which can establish direct service connection on the basis of a nexus or relationship to active service. The Board has given consideration to the Veteran's contention his current RLS is directly caused by exposure to an herbicide agent. As stated above, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, neurological issues fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Such disorders are too specialized and complicated and the record does not indicate medical training or experience of the Veteran. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Consequently, the Veteran's assertions, without support in the clinical record, are ascribed low probative weight. The Secretary must provide a VA medical examination only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). These elements are conjunctive as set forth and, as such, all must be satisfied. The necessity for a VA examination fails on the second and third elements under McLendon. The record of treatment provides no medical evidence showing RLS occurred or manifested in a presumptive period, nor is it associated with his active service or with another service-connected disability. The record, although showing a current diagnosis, provides nothing to connect by causation RLS to events, injuries or illnesses in active service. Therefore, the Board finds the competent medical evidence on file is otherwise sufficient for the Secretary to decide the claims. For these reasons, there is no necessity and no outstanding duty of the Secretary to assist the Veteran further in this claim with VA examinations. See 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. Appeal. at 83-86. For the reasons stated and based on the evidence of record, the Board finds there is no approximate balance of the evidence to support the claim for service connection. As such, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Counsel