Citation Nr: 21071862 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-27 089 DATE: December 1, 2021 ORDER Service connection for myoclonus, to include as secondary to service-connected disabilities, is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran's current myoclonus is proximately due or aggravated by his medication for his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for a myoclonus disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from January 1971 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office(RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) ata videoconference hearing in October 2019; a transcript is of record. This matter was most recently remanded by the Board in April 2021. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). An additional examination was performed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for myoclonus, to include as secondary to service-connected disabilities. The Veteran asserts service connection for myoclonus, to include as secondary to service-connected disabilities and accompanying medications. See 8/16/2019, Third Party Correspondence Medications. He has a current diagnosis of myoclonus, to include as noted at his June 2021 examination. As such, the first element of service connection has been met. The Veteran has provided private medical records suggesting a relationship between his myoclonus and his service-connected disabilities. However, the Board finds that these records are too speculative. In this regard, a November 2010 notation stated, "myoclonic jerks seen; suspect med related (hydrocodone)." See 11/23/2010, Medical Treatment Record, at p. 8. Concerning the VA examiner's opinions, a July 2015 examination found that his myoclonus was not caused by or aggravated by his cervical disabilities. A January 2017 examiner essentially agreed with the July 2015 examiner's opinion and rationale. The November 2017 examiner also provided a negative secondary opinion for myoclonus as related to his service-connected psychiatric disorder. However, whether his medication for his service-connected disabilities caused or aggravated his myoclonus was not addressed in any of the opinions. The Board previously found these examinations insufficiently addressed the Veteran's contentions and remanded for a new opinion. The Veteran underwent an examination in November 2020. The examiner stated that his disability was not due to service or secondary to his service-connected mood disorder. As the examiner did not address whether his disability was secondary to his medications for his service-connected disabilities, an addendum opinion was provided in January 2021. The examiner stated that his myoclonus was not secondary or aggravated beyond the natural progression by any of the current medications he takes for his service-connected disabilities. The Board previously found these opinions insufficiently addressed the Veteran's contentions as well as his medication history and remanded for a new opinion. The 2021 examiner stated the Veteran's myoclonus was less likely than not secondary to his service-connected disabilities. However, the examiner also stated that the Veteran's medication could have contributed to his myoclonus. A research article was cited in support noting that opiates can cause myoclonus, but that the symptoms stop when the medication is discontinued. The examiner also stated the medications could have had influence on his myoclonus, but it was impossible to say further without speculation. The Board finds this opinion to have probative value towards a positive nexus. In this regard, the Veteran has taken medication for his service-connected disabilities during the period on appeal. The examiner cited a research article in support that certain medications, to include medications the Veteran has taken, can cause or exacerbate myoclonus. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his myoclonus is proximately due to or aggravated by his medication for his service-connected disabilities. 38 U.S.C. § 5107(b). The Board has found the 2021 opinion to have probative value towards a positive nexus opinion. The Board acknowledges the medical article cited reported that generally when the medications are stopped, the symptoms abate. Additionally, the prior negative opinions had been previously found to have less probative value as the Veteran's contentions were not fully considered or his medication during the period on appeal was not accurately addressed. In contrast, the Board has also found the 2021 nexus opinion to be entitled to probative value as shown above. As the opinions have strengths and weakness, the Board finds that they balance out. As such, the Board finds that the evidence is at least in equipoise that the Veteran's myoclonus disability is related to his medication for his service-connected disabilities. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Therefore, the Board finds that service connection for myoclonus is warranted. 38 C.F.R. § 3.310(a). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.