Citation Nr: 21064834 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-07 247 DATE: October 21, 2021 ORDER Entitlement to service connection for a disability manifesting in muscle spasms is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether his currently-diagnosed muscle spasms disorder had its onset during his active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for a disability manifesting in muscle spasms are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to January 1983. He testified at a hearing before the Board in August 2018. A transcript of the hearing has been associated with the claims file. Service Connection The Veteran claims entitlement to service connection for muscle spasms as a result of his military service. Specifically, he claims that he began to experience muscle spasms after receiving injections during service, that they started in his shoulder blades, and that his spasms have been present and have spread ever since. See August 2018 Hearing Transcript, pp. 11-12. As will be explained, the Board concludes that the Veteran has a current disability manifested by muscle spasms that had its onset during his active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's service treatment record confirms that he experienced muscle spasms in service. For example, a July 1982 service treatment record noted mild spasms in the left trapezius. Another July 1982 service treatment record noted the presence of paravertebral muscle spasms In connection with the Board's May 2021 remand, the Veteran underwent a VA examination in August 2021, and the examiner noted a current diagnosis of muscle spasms. See the August 2021 VA examiner's report, at 12. The examiner also noted the Veteran's report that he began to experience muscle spasms during service and that those spasms have continued ever since. Ultimately, the examiner opined that the Veteran's currently-diagnosed muscle spasm disorder is at least as likely as not related to his in-service treatment for muscle spasms in July 1982. Although two negative opinions have been provided in this appeal, as previously mentioned in the September 2020 and May 2021 remands, those opinions are not probative as both fail to reflect consideration of the Veteran's lay statements concerning the onset and continuity of his muscle spasm symptoms. With regard to the Veteran's lay statements, dating back to July 1996 when he filed his first claim for service connection, he has consistently argued that he experiences a muscle spasm disorder that began during his active duty service. Given the consistency of his statements and argument, as well as the lack of any evidence to the contrary, the Board finds no reason to question the Veteran's credibility with respect to the onset of his symptoms. Indeed, it appears that the VA examiner accepted and relied on the Veteran's lay statements to support her positive opinion. As such, the Board finds that the evidence of record is at the very least in equipoise as to whether the Veteran's current muscle spasm disorder had its onset during his active duty service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for a muscle spasm disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Board remanded the issue of entitlement to TDIU in May 2021 (along with the muscle spasm issue) finding that AOJ adjudication of the muscle spasm issue likely will impact the adjudication of the TDIU claim. The Board notes that the Veteran currently does not meet the schedular requirements for TDIU per 38 C.F.R. § 4.16(a). However, this decision grants service connection for a muscle spasm disability, and an initial rating and effective date needs to be assigned by the AOJ in the first instance. As such, the Board will defer the TDIU matter to allow the AOJ to assign an initial rating and effective date for the now service-connected muscle spasm disability. On remand, the Veteran should be given the opportunity to provide any additional evidence in support of his claim for a TDIU. The matters are REMANDED for the following action: Assign a rating and effective date for the award of service connection for the Veteran's muscle spasms disability. Then, adjudicate the Veteran's claim for TDIU. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.