Citation Nr: A21020512 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200428-85144 DATE: December 27, 2021 ORDER New and relevant evidence has been received to readjudicate the claim for service connection for a neurological condition of the right lower extremity distinct from radiculopathy (claimed as neuropathy). New and relevant evidence has been received to readjudicate the claim for service connection for a neurological condition of the left lower extremity distinct from radiculopathy (claimed as neuropathy). New and relevant evidence has been received to readjudicate the claim for service connection for twitching episodes of the entire body. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a neurological condition of the right lower extremity distinct from radiculopathy (claimed as neuropathy) is remanded. Entitlement to service connection for a neurological condition of the left lower extremity distinct from radiculopathy (claimed as neuropathy) is remanded. Entitlement to service connection for twitching episodes of the entire body is remanded. FINDINGS OF FACT 1. A September 2010 rating decision denied service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and twitching episodes of the entire body. 2. The Veteran did not appeal the September 2010 rating decision, or submit or identify new and material evidence within a year of notification of that decision. 3. Since the September 2010 rating decision was issued, new evidence has been received that tends to prove a matter at issue in the claims for service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and twitching episodes of the entire body. 4. During the period under review, the record does not show that either ear had a puretone threshold of 40 decibels or greater at the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, or a puretone threshold of 26 decibels or greater at three or more of those frequencies, or speech recognition scores less than 94 percent. CONCLUSIONS OF LAW 1. The September 2010 rating decision is final with regard to the claims for service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and twitching episodes of the entire body. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. The criteria for readjudication of the claims for service connection peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and twitching episodes of the entire body have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had an honorable career in the U.S. Air Force, serving on active duty from May 1986 to May 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2019 decisions of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. New and Relevant Evidence On or after February 19, 2019, in any case in which the Secretary of VA renders a decision on a claim, the claimant may, in pertinent part, file a supplemental claim under 38 U.S.C. § 5108 for the same disability. 38 U.S.C. §§ 5104(C), 5108; 38 C.F.R. §§ 3.1(p)(2), 3.2500(a)(2), 3.2501, 3.156(d); see 38 C.F.R. § 19.2(a). If new and relevant evidenced is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.2501, 3.156(d). Under the "new and relevant evidence" standard, "new evidence" is defined as evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). "Relevant evidence" is defined as evidence that tends to prove or disprove a matter at issue in a claim. Id. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. Id. New and relevant evidence received before VA issues its decision on a supplemental claim will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.2501(a)(2). The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. 38 C.F.R. § 3.2501(b). For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. Id. Here, a September 2010 rating decision denied the claims for service connection for peripheral neuropathy of the right lower extremity (claimed as tingling in the right foot), peripheral neuropathy of the left lower extremity (claimed as tingling in the left foot), and twitching episodes of the entire body. The Veteran was notified of the decision and his appellate rights in a September 2010 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not file an appeal. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (setting forth requirements for appealing a decision under VA's legacy appeal system). He also did not submit or identify new and material evidence (the standard for reopening a claim under VA's then applicable legacy appeal system) within one year of the date of mailing of the September 2010 rating decision. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) and (b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). Accordingly, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The September 2010 rating decision denied the claims for service connection for peripheral neuropathy of the bilateral lower extremities and twitching episodes of entire body because it found that there was no medical evidence of these conditions. In June 2019, the Veteran filed a supplemental claim (VA Form 20-0995) for peripheral neuropathy of the right and left lower extremities and twitching episodes of the entire body, among other claimed disabilities. In August 2018 and June 2019, he submitted private treatment records and a December 2018 letter from his private physician, W. Rivers, D.O. As that evidence was received before the September 2019 decision, it is part of the evidentiary record for the June 2019 supplemental claim, and is considered to have been filed in connection with that claim. See 38 C.F.R. § 3.2501(b) and (a)(2). These private treatment records and the December 2018 letter were not of record at the time of the September 2010 rating decision. Thus, they are new to the file. Because they tend to prove or disprovein this case provea matter at issue in the case, namely whether the Veteran has current disabilities, they constitute relevant evidence. See 38 C.F.R. § 3.2501(a)(1); see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (setting for elements for establishing service connection on a direct basis). Accordingly, as new and relevant evidence has been received, the criteria for readjudication of the claims for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and twitching episodes of the entire body are met. See 38 C.F.R. § 3.156(d). Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 at *10 (Fed. Cir. Dec. 7, 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-rule does not apply. Id. at *11. Hearing Loss The Veteran seeks service connection on the basis that he was exposed to significant in-service acoustic trauma. In addition, he reports noticing a decline in his hearing acuity during service and emphasizes that VA has established service connection for his tinnitus. The evidentiary record before the Board shows that the Veteran does not have a current hearing loss disability in either ear. Consequently, service connection is not established. For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. A VA audiological examination was performed in July 2019. The examination report reflects that on audiometric testing, the Veteran's right ear puretone thresholds were 10 decibels (dB) at 500 Hertz, 5 dB at 1000 Hertz, 10 dB at 2000 Hertz, 20 dB at 3000 Hertz, and 25 dB at 4000 Hertz. The speech recognition score was 96 percent for the right ear. His left ear puretone thresholds were 10 dB at 500 Hertz, 10 dB at 1000 Hertz, 15 dB at 2000 Hertz, 30 dB at 3000 Hertz, and 20 dB at 4000 Hertz. The speech recognition score was 94 percent for the left ear. These testing results show that the Veteran's hearing loss has not satisfied the criteria for a disability in either ear. See 38 C.F.R. § 3.385. The fact that the Veteran has some hearing loss is not at issue. However, he has not submitted evidence showing that his hearing loss satisfies the criteria for a disability under § 3.385. The July 2019 VA examination report constitutes probative evidence showing that his hearing loss in either ear is not severe enough to constitute a disability for VA compensation purposes. See id. The Board notes that VA treatment records added to the file in February 2021 reflect audiological treatment, including audiometric testing conducted in March 2020. These records were not submitted by the Veteran or his representative, and were not received during a permissible period for submitting new evidence in support of the appeal. In this regard, in appeals with a request for a Board hearing, the Board decision will be based on: (1) evidence of record at the time of the AOJ's decision on the issue or issues on appeal; (2) evidence submitted by the appellant or his or her representative at the hearing, to include testimony provided at the hearing; and (3) evidence submitted by the appellant or his or her representative within 90 days following the hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302(a). These records were added to the file after the AOJ decision on appeal, but before the hearing. Accordingly, the VA treatment records added to the file in February 2021, including the March 2020 record of audiological testing, are not part of the evidentiary record before the Board at this time. If he wishes, the Veteran may file a supplemental claim and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. As the evidence shows that the Veteran has not had a hearing loss disability in either ear during the period under review, the criteria for service connection are not satisfied. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Because the evidence is persuasively against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. REASONS FOR REMAND 1. Entitlement to service connection for a neurological condition of the right lower extremity distinct from radiculopathy (claimed as neuropathy) is remanded. 2. Entitlement to service connection for a neurological condition of the left lower extremity distinct from radiculopathy (claimed as neuropathy) is remanded. The Board remands the claims for service connection for neurological conditions of the left and right lower extremities (claimed as neuropathy) to correct an error of the AOJ to satisfy its duty to assist under 38 U.S.C. § 5103A, as the error occurred prior to the AOJ decision on appeal. See 38 C.F.R. § 20.802(a). VA's statutory duty to assist applies to supplemental claims when new and relevant evidence is presented or secured. 38 U.S.C. § 5103A(e)(1); 38 C.F.R. § 3.159(c)(4)(iv). Here, as discussed above, the Veteran submitted new and relevant evidence prior to the September 2019 decision. The evidence of record at the time of that decision reasonably raises the issue of whether he has a neurological condition distinct from radiculopathy, and that may be associated with his service-connected low back disability. First, it is important to point out that service connection has already been awarded for radiculopathy of the bilateral lower extremities involving the sciatic nerve, with separate 20-percent ratings assigned the left and right lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, which pertains to paralysis of the sciatic nerve. See October 2018 Rating Decision. In February 2020 and November 2020 statements, the Veteran wrote that he was submitting a claim under Diagnostic Code 8720 for "neuralgia/neuritis" related to his service-connected back injury. In the February 2020 statement, under the heading "Diagnostic Code 8720 (Neuralgia)/Radiculopathy," he described symptoms including sharp, uncontrolled nerve pain originating in his left hip and radiating across his left buttock and down his left leg. He also described a weakened left leg, pins and needles sensations in the soles of both his feet, and a sensation of insects crawling across both calves. Diagnostic Code 8720 pertains to neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. The ratings assigned under DC 8520 already contemplate neuralgia and neuritis (DC 8620) of the sciatic nerve. See 38 C.F.R. §§ 4.123, 4.124. However, application of DC 8520 is more favorable, as paralysis (complete or incomplete) of the sciatic nerve may be assigned higher ratings than neuralgia or neuritis of the sciatic nerve under DC's 8720 or 8620, provided the criteria for a higher rating under DC 8520 are satisfied. See id.; 38 C.F.R. § 4.124a, DC 8520. Accordingly, the Veteran is advised that what he is claiming as "neuropathy" or "neuralgia/neuritis" may already be service-connected as radiculopathy under DC 8520. The Board observes that the AOJ decisions dated in September 2019 and February 2021 denied higher ratings for the Veteran's radiculopathy of the bilateral lower extremities. He has not sought review of those decisions. That said, statements by the Veteran and medical evidence submitted prior to the September 2019 decision also describe symptoms in connection with this claim that may also go beyond his service-connected radiculopathy. More specifically, in an August 2019 statement, he wrote that he experiences a burning sensation between his shoulder blades. He also described a sensation in his calves to the top of his feet that he refers to as arachnoiditis. In this regard, a December 2018 letter by the Veteran's treating physician, W. Rivers, D.O., states that the Veteran had a sensation of insects crawling on his lower legs "mimicking arachnoiditis and peripheral neuropathy." Dr. Rivers also suggested that the Veteran's burning sensation between the shoulder bladesnear T8/T9may be related to the implantation of a spinal cord stimulator (SCS) device to treat his low back symptoms. According to the letter, he underwent surgical implantation of an SCS device in October 2017, and then surgical relocation of that device in April 2018. Although the Veteran specifically claimed peripheral neuropathy of the right and left lower extremities in his June 2019 supplemental claim (VA Form 20-0995), the Board finds that these claims encompass the neurological symptoms described in his August 2019 statement and Dr. Rivers' December 2018 letter, both of which were submitted in response to the AOJ's July 2019 letter requesting the Veteran to clarify his claim for peripheral neuropathy. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). That letter explained that it was requesting clarification of the claim for neuropathy because service connection for radiculopathy of the bilateral lower extremities had already been granted. Thus, the Veteran's response shows that his claims extend beyond radiculopathy of the lower extremities to include the symptoms described above. He confirmed as much at the August 2019 Board hearing. In sum, at the time of the September 2019 decision, there was evidence of record indicating that the Veteran has neurological symptoms of the bilateral lower extremities potentially distinct from radiculopathy, including the sensation of crawling characterized as "arachnoiditis," as well as the burning sensation between the shoulder blades, which may be associated with his service-connected low back disability, including the surgical implantations of the SCS device. Consequently, the AOJ had a duty to obtain a VA examination and medical opinion on that issue. See 38 C.F.R. § 3.159(c)(4). As an examination and medical opinion have not been obtained, remand is warranted to correct that error. 3. Entitlement to service connection for twitching episodes of the entire body is remanded. The Board remands the claim for twitching episodes of the entire body to correct an error of the AOJ to satisfy its duty to assist under 38 U.S.C. § 5103A, as the error occurred prior to the AOJ decision on appeal. See 38 C.F.R. § 20.802(a). VA's statutory duty to assist applies to supplemental claims when new and relevant evidence is presented or secured. 38 U.S.C. § 5103A(e)(1); 38 C.F.R. § 3.159(c)(4)(iv). Here, the Veteran submitted new and relevant evidence prior to the September 2019 decision. The evidence of record at the time of that decision reasonably raises the issue of whether he has a disability manifested by "twitching episodes," such as a tic, that may be associated with his service-connected low back disability. Specifically, a February 2017 private treatment record notes in the context of discussing the Veteran's back symptoms that he has spasms and feels that his legs jump randomly, which the physician observed during the visit. In a May 2010 statement, the Veteran wrote that he has twitching episodes in which his entire lumbar area tingles and then his entire body twitches in a violent manner that he cannot prevent. The evidence of record at the time of the September 2019 decision shows that there is at least an indication that the Veteran's twitching episodes may be associated with his service-connected low back disability. Consequently, the AOJ had a duty to obtain a VA examination and medical opinion on that issue. See 38 C.F.R. § 3.159(c)(4). As an examination and medical opinion have not been obtained, remand is warranted to correct that error. In addition, although the Veteran has not advanced this theory, the evidence of record at the time of the September 2019 decision reasonably raises the issue of whether his twitching episodes may be a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI) based on his Persian Gulf service. See 38 C.F.R. § 3.317. When a Persian Gulf veteran exhibits objective indications of a qualifying chronic disabilityan undiagnosed illness or MUCMI as defined in § 3.317that became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026, service connection may be established for that disability on a presumptive basis. 38 U.S.C. § 1118; 38 C.F.R. § 3.317. Here, the Veteran's service treatment records (STR's) show he served in Kuwait in 1998. See September 1998 STR. Thus, he is considered a Persian Gulf veteran. See 38 C.F.R. § 3.317(e). Signs or symptoms which may be a manifestation of an undiagnosed illness or MUCMI include neurological signs or symptoms. § 3.317(b)(6). Accordingly, at the time of the AOJ decision, there was at least an indication that the Veteran's twitching episodes may be a sign or symptom of an undiagnosed illness or MUCMI. Consequently, the AOJ had a duty to obtain a VA examination and medical opinion on that issue. See 38 C.F.R. § 3.159(c)(4). As an examination and medical opinion have not been obtained, remand is warranted to correct that error. The matters are REMANDED for the following action: 1. Arrange for a VA examination and medical opinion to assess whether the Veteran has one or more neurological conditions distinct from radiculopathy associated with his lumbar spine disability, including surgical treatment and the implantation of an SCS device. The examiner is asked to provide opinions as to whether it is at least as likely as not that the following are related to the Veteran's low back disability: (a.) Sensation of crawling in the lower legs, which has been liked to arachnoiditis (see December 2018 letter by Dr. Rivers), and whether this is distinct from radiculopathy involving the sciatic nerve; (b.) Pain in the feet and toes, and pins and needles sensations in the soles of his feet, including whether such is distinct from his radiculopathy of the sciatic nerve (in which case the specific nerve(s) involved should be identified); (c.) Burning sensation between the shoulder blades, to include whether this may be related to the SCS implantation or otherwise related to the low back disability; (d.) Involuntary twitching or spasms of the legs and body, also characterized as spastic tics or jerking movements. The examiner must address each of the above symptoms separately. 2. Arrange for a VA Gulf War examination and medical opinion to assess whether the Veteran's involuntary jerking movements or spastic ticks ("twitching episodes"), and/or any other neurologic symptoms of the lower extremities not accounted for by his radiculopathy, may be manifestations of an undiagnosed illness or MUCMI. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.