Citation Nr: 1327602 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 03-01 450 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for muscle twitching, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1987 to August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Houston, Texas RO. A videoconference hearing was held before the undersigned in June 2004; a transcript of the hearing is included in the claims file. At the hearing, the Veteran requested and was granted a 90 day abeyance period to allow for the submission of additional evidence; no additional evidence was received. The Board remanded the matter in December 2003, October 2004, April 2007, June 2009, March 2011, June 2012, and November 2012. FINDINGS OF FACT 1. An unappealed September 1997 rating decision denied the Veteran's claim of service connection for muscle fasciculations and twitching due to an undiagnosed illness, based on findings that such disability did not arise during the Veteran's service in the Persian Gulf Theater, and was not manifested to a compensable degree after his discharge from service. 2. Evidence received since the September 1997 rating decision does not show objective manifestation of a disability manifested by muscle twitching; does not bear directly and substantially upon the specific matter under consideration; is cumulative and redundant; and, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for muscle twitching may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete Kent-compliant notice prior to the initial rating decision, August 2001, November 2004, April 2007, August 2008, July 2009, March 2011, July 2012, and April 2013 letters provided certain essential notice prior to the last readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The April 2013 letter provided notice that complied with Kent and explained the evidence VA was responsible for providing and the evidence he was responsible for providing. A May 2013 supplemental statement of the case (SSOC) readjudicated the matter after the appellant and his representative had opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (a VCAA timing defect may be cured by issuance of fully compliant notification followed by readjudication of the claim). The Veteran's service treatment records (STRs) and post-service treatment records have been secured. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). The appellant has not identified any evidence that remains outstanding. In this regard the Board notes that while on February 2012 VA treatment the Veteran reported he had seen an outside [the VA] neurologist who noticed his arm spasms, he has not submitted the report of such consultation or identified the neurologist as a provider whose records are pertinent and should be sought. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Generally, when the RO denies a claim, and the veteran does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Veteran filed his petition to reopen this claim in March 2001. For claims filed prior to August 29, 2001, new and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Historically, an unappealed September 1997 rating decision denied the Veteran service connection for muscle fasciculations and twitching claimed as due to an undiagnosed illness, based on findings that such disability neither arose during service in the Persian Gulf Theater, nor was manifested to a compensable degree after the Veteran's discharge from service. The Veteran submitted a timely notice of disagreement with that determination, and a statement of the case was issued. However, he did not perfect an appeal in the matter by submitting a substantive appeal. That decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. Compensation may be paid to any Persian Gulf War veteran suffering from a qualifying chronic disability that became manifest in service or to a degree of 10 percent thereafter . A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome (IBS); or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The evidence of record at the time of the September 1997 rating decision included the Veteran's STRs, postservice treatment records, and VA examination reports from August 1994, September 1994, and February 1995. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of any disability manifested by muscle twitching. No service separation examination is available for review. On August 1994 VA treatment, the assessments included twitching of the muscles of the forearms and both legs. On August 1994 VA Persian Gulf examination, the Veteran reported muscle twitches of both legs and forearm muscles; on neurological examination, there was no motor or sensory deficit. On September 1994 VA Persian Gulf examination, the Veteran reported tingling in all four extremities intermittently. He noted that his muscles twitched occasionally in his arms more so than his legs; he had little fasciculations under his skin about two or three times per month. He had had one myoclonic jerk of his legs while sleeping. On physical examination, a motor exam revealed 5/5 strength in the arms and legs without atrophy or fasciculations. No fasciculations or myoclonic jerks were noted on examination. The diagnoses included restricted complaints of fasciculations of the upper extremities, that occur only two or three times per month, of uncertain clinical significance; there was no evidence of myoclonus or underlying neurologic degenerative condition. The diagnoses also included evidence of carpal tunnel syndrome related to his employment at Bausch and Lomb, unrelated to any trauma or activity in the Persian Gulf. In a November 1994 claim, the Veteran contended that he had experienced muscle spasms since April 1991. On February 1995 VA general medical examination, the Veteran reported that he was exposed to smoke for one day while he was stationed in the Persian Gulf, and he was also exposed to chemicals against flies, diesel engine fumes, and granules that were sprayed around the tent and inside the tents where he stayed. On February 1995 VA orthopedic examination, the Veteran reported that he was exposed to oil smoke while stationed in Saudi Arabia from October 1990 to April 1991. He reported having twitching of muscles of his forearms, his thighs, and occasionally his calves as well, accompanied by a little tingling sensation. He reported that he did not really have any pain, just some flickering of the muscles. The examiner did not see this demonstrated on examination and noted that it was apparently not associated with any other problems such as fasciculations, etc. On physical examination, examination of the forearms, hands, and arm musculature was all well within normal limits with good muscle bulk and excellent strength throughout. No abnormality was found on examination and there was no numbness or tingling identified. The diagnosis was muscle fasciculations and twitchings, of undetermined etiology; nothing was found on physical examination. On January 1996 private psychodiagnostic and neuropsychology evaluation, the Veteran reported fasciculations in his forearms, thighs, calves, and chest muscles, on the left side more so than the right. He also complained of numbness in his arms and hands, more so on the left side than the right. Evidence received since the September 1997 rating decision consists essentially of VA treatment records showing that the Veteran continues to infrequently report muscle twitching in his forearms and his legs, and lay statements and testimony from the Veteran. The May 2002 rating decision on appeal denied service connection for muscle twitching due to undiagnosed illness, based essentially on findings that the evidence failed to show a disabling condition of muscle twitch for which compensation may be established. At the June 2004 videoconference Board hearing, the Veteran testified that he underwent a nerve induction test in approximately 1994 although the results had not been deciphered precisely. He testified that, on the days when he was examined by VA, his arm muscles were not twitching and he could not demonstrate how unstable his hand was. On March 2005 VA treatment, the Veteran reported having muscle twitch and shaking hands. On physical examination of the extremities, there were no joint aches, no muscle aches, and no edema. The assessments included muscle twitch. On January 2008 VA neurological examination, the Veteran reported that the muscles of his feet, calves, thighs, and forearms twitch at times. He reported that he has carpal tunnel type symptoms and cramps, and when he sits down to rest after walking some distance it feels like a Charlie horse in his lower leg. On physical examination, no twitching or tic was observed in the forearms or any part of the legs. The diagnoses included twitch in the muscles of the feet, calves, thighs and forearms. On February 2012 VA treatment, the Veteran reported that he had seen an outside neurologist who noticed spasms of his left upper arm. He reported that he gets muscle twitches as well as clenching of his left fist lasting for a few minutes at a time. Because service connection for muscle twitching was denied in September 1997 based on findings that such a disability neither arose during service in the Persian Gulf theater, nor was manifested to a compensable degree after the Veteran's discharge from service, for evidence to be new and material in this matter, it would have to tend to show that the Veteran has a muscle twitching disability (a disabling condition) that is indeed related to service. While the treatment records added to the record since the September 1997 rating decision are new evidence in the sense that they were not considered in that decision, they are not material evidence. They do not include any record/notation of an objective manifestation of a muscle twitching disability; the Veteran himself has acknowledged that muscle-twitching did not occur when he was evaluated/examined. Therefore, they do not bear directly and substantially upon the specific matter under consideration; they are cumulative and redundant; and they, by themselves or in connection with evidence previously assembled, are not so significant that they must be considered in order to fairly decide the merits of the claim. The Veteran's own assertions are not adequate evidence to establish that he has a chronic disability manifested by muscle twitching that is (or may be) related to service. While he may be capable of observing that he has or has had such symptoms, the governing regulation 38 C.F.R. § 3.317(a) requires that there be objective [emphasis added] indications [of the disability]. Here, there has been no such objective finding of muscle-twitching; only the Veteran's subjective reports. In summary, no additional competent evidence received since the September 1997 rating decision is new evidence that tends to prove that the Veteran has muscle twitching due to an undiagnosed illness that has been manifested to a compensable degree. Therefore, the additional evidence received since September 1997 does not bear directly and substantially upon the specific matter under consideration; is cumulative and/or redundant; by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim; and is not new and material. Accordingly, the claim may not be reopened. ORDER The appeal to reopen a claim of service connection for muscle twitching, claimed as due to an undiagnosed illness, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs