Citation Nr: 1220738 Decision Date: 06/13/12 Archive Date: 06/22/12 DOCKET NO. 05-28 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for gout residuals of the bilateral feet. 2. Entitlement to service connection for residuals of anthrax inoculations, characterized as bilateral elbow, ankle, and knee sprains. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to September 1979, and from February 2003 to September 2003. He also served in the Army National Guard (ANG) between his periods of active duty service, including periods of active duty training (ACDUTRA). These matters initially came before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to service connection for right toe gouty arthritis, left hallux valgus, bilateral elbow strains, and bilateral elbow, ankle, and knee sprains. In October 2008, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. FINDINGS OF FACT 1. It is more likely than not that the Veteran's gouty arthritis in the bilateral feet was caused by the aggravation of gout symptoms during active duty. 2. It is more likely than not that the Veteran's in-service anthrax inoculation caused residuals characterized as bilateral elbow, ankle, and knee sprains. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for gout residuals of the bilateral feet are met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for musculoskeletal residuals of anthrax inoculations are met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter the Board notes the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate the claims herein decided. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011) in regard to that issue. Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 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). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111. According to 38C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by a veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to . . . manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. If a pre-existing disorder is noted upon entry into service, a veteran's claim is not for direct service connection, but rather it is a claim for service-connected aggravation of that disorder. A pre-existing disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In deciding an aggravation claim, the Board must determine, after having found the presence of a pre-existing condition, whether there has been any measurable worsening of the disability during service and whether such worsening constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Under Section 1153, the burden falls on a veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under Section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See 38 U.S.C. § 1153; also see 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran essentially contends that he has musculoskeletal disabilities related to gouty attacks and/or in-service anthrax inoculations. As noted above, the Veteran had two separate periods of active duty military service. A review of the Veteran's service treatment records (STRs) shows his August 1979 discharge physical examination was normal, and there were no musculoskeletal problems noted. An October 1979 physical examination showed no musculoskeletal disability or problems related to gout. In a March 2002 report of medical history, the Veteran denied any swollen/painful joints, foot trouble, impaired use of arms, legs, hands, or feet, and denied any knee trouble. Upon activation in February 2003, the Veteran indicated that he had occasional gout, and reported swollen or painful joints. In a June 2003 STR, the Veteran was noted to have a history of gout with exacerbations following the anthrax vaccine. He had a gouty attack following the first injection, and podagra continued in an unrelenting manner throughout the vaccination series. He was noted to have been to sick call several times prior to the instant treatment, and the physician indicated that he had a predominantly resolved podagra. In a follow-up appointment, the Veteran was noted to have resolving gout/podagra that had been exacerbated by his anthrax inoculation. The treating physician indicated that the Veteran should not be given any additional anthrax inoculations. In an August 2003 report of medical history, the Veteran indicated that he had continuous gouty attacks after receiving anthrax shots, but had not had any attacks since April. In September 2004, the Veteran was afforded a VA joints examination, during which he reported continued arthralgias in his feet and elbows. X-rays revealed moderate arthritic changes involving the first metatarsophalangeal joint (MTP) of the right knee, and middle to moderate arthritis changes involving the left MTP joint. The radiologist indicated that these findings are suggestive of bilateral first MTP gouty arthritis. Following physical examination, the examiner diagnosed the Veteran as having gouty arthritis of the right great toe, caused by anthrax injections, now resolved; chronic, bilateral elbow sprain, caused by anthrax injections with intermittent symptoms since 2003; intermittent sprain of the ankles and knees secondary to anthrax injections, and left hallux valgus. The Veteran receives occasional treatment for his complaints at the VA Medical Center. In March 2005, the Veteran sought treatment for complaints of right elbow pain with forearm numbness. X-ray of the right elbow revealed a little arthritis in the elbow joint. Physical examination revealed full range of motion and sensation within normal limits in the right elbow and forearm. The physician's assistant assessed the Veteran as having a reaction to the in-service anthrax vaccination. A May 2005 MRI of the left elbow showed fluid accumulation around the olecranon, inflammation and hypertrophy at the distal triceps, and ulnar nerve is increased in signal, possibly secondary to inflammation. The radiologist contacted the Veteran, at which time he reported that he experiences pain and inflammation in his wrists, knees, ankles, and back, but currently only had symptoms in the left elbow. Following a September 2005 MRI, the Veteran was found to have edema/inflammation of the soft tissues adjacent to the Achilles tendon, questionable accessory peroneal muscle/tendon or longitudinal splitting of a tendon, and slightly increased joint fluid. In September 2006, the Veteran was afforded a Gulf War VA examination, during which he reported his in-service reaction to the anthrax vaccination. The examiner diagnosed the Veteran as having gouty arthritis of the bilateral first MTP joints in association with bilateral hallux valgus, degenerative joint disease of the both ankles, degenerative joint disease of the bilateral elbows, and chronic knee pain with normal examination and no current evidence of inflammation. The examiner noted that the Veteran did not have definitive treatment for gout, and his uric acid levels were currently 8.5. The examiner opined that the Veteran's bilateral elbow complaints are secondary to degenerative arthritis, and his bilateral knee pain is related to a sprain and perhaps inadequately treated gouty arthritis. He opined that the Veteran's bilateral ankle pain was due to degenerative changes in the ankle as well as the gouty arthritis of the both great toes. Ultimately, the examiner noted that the recurring poly-arthritis was related to gout and degenerative arthritis. The Veteran was afforded another VA examination in May 2009, during which he was diagnosed as having acute gout and polyarthralgias. During the examination, the Veteran reported not having any pain in the joints prior to his anthrax injections, and advised that he has recently been diagnosed as having gout by a private examiner. The examiner found that the Veteran's complaints were at least as likely as not related to the Veteran's anthrax vaccination in service, as its symptoms were first observed following his in-service anthrax vaccination. In so concluding, the examiner provided somewhat confusing rationale, but then stated that polyarthralgias could be caused by vaccinations, thus, his favorable opinion to the Veteran. The Veteran underwent a VA foot examination in May 2009, during which he was diagnosed as having bilateral, episodic first MTP gouty arthritis exacerbations and bilateral hallux valgus. The examiner opined that the Veteran's bilateral hallux valgus was less likely than not secondary to his gout, and are caused by ill-fitting footwear. The examiner indicated that he could not provide an opinion as to whether the Veteran's gout preexisted service as there was no documentation in the service medical records. The examiner provided a negative opinion as to whether the Veteran's gout and/or hallux valgus were attributable to his anthrax vaccinations in service. In so opining, he cited medical literature basically indicating that the effects of anthrax vaccinations are currently unknown. The examiner also noted that the Veteran's symptoms could have been caused by gout, but proper testing was not done at the time to verify uric acid levels or other gout indicators. In June 2010, the Veteran underwent another VA joints examination during which he was diagnosed as having gout, tophus formation, and erosive calcaneal enthesopathy, bilaterally. The examiner noted that gout was a genetic condition, and there is no evidence of a cause/effect relationship between gout and anthrax vaccination. The examiner opined that the Veteran's gout "could have been the progression of this natural disease course or periods of dehydration which is known to precipitate gout." Following the request from a December 2010 Board remand, the Veteran underwent another VA examination in March 2011. The Veteran was diagnosed as having gout, manifested by podagra, and transient inflammatory changes in the ankles, knees, and elbows. The examiner noted that the Veteran did not have a confirmed diagnosis of gout prior to the anthrax injections, and he subsequently developed acute inflammatory changes with podagra. The examiner found that the Veteran's joints were aggravated by his anthrax injections, but found no permanent residuals at this time. He opined that it was less likely than not that the Veteran's in-service anthrax injections caused permanent residuals. Upon careful review of the evidence of record, the Board finds that the Veteran's gouty arthritis of the bilateral feet, and joint disabilities of the bilateral ankles, knees, and elbows, warrant service connection. The evidence of record shows that the Veteran was noted to have gout upon entry into his second period of service, beginning in February 2003. This notation, however, did not indicate which joints were impacted by gout. Further, the Veteran was treated for gout exacerbations during service following anthrax injections. The treatment records themselves reflect significant complaints and notations of exacerbation, thus, the Board finds that the evidence does not clearly and unmistakable show that the Veteran's gout symptoms did not increase in severity during his period of active duty service. In other words, his symptoms were not due to the natural progression of his gout. Moreover, the evidence shows diagnoses of bilateral knee, ankle, and elbow disabilities that are related to his in-service anthrax inoculations. The Board recognizes that there have been conflicting and confusing diagnoses, opinions, and statements made by the VA examiners and treating personnel. The positive and negative evidence is in relative equipoise as to the cause, severity, and etiology of the Veteran's current musculoskeletal complaints in the bilateral feet, ankles, knees, and elbows. Additionally, the Board sees no reason to question the Veteran's credibility that his joint symptoms were significantly exacerbated following his in-service anthrax injections. Further, the treatment records from that time are consistent with the Veteran's assertions of exacerbating symptoms. Finally, the Veteran has been shown to have current treatment for and complaints related to his bilateral feet, ankles, knees and elbows. Accordingly, with full consideration of the doctrine of giving the benefit of the doubt to the Veteran, the Board finds that a grant of service connection is warranted for gouty arthritis of the bilateral feet, and residuals of anthrax inoculations in the bilateral ankles, knees, and elbows. ORDER Service connection for gouty arthritis of the bilateral feet is granted. Service connection for residuals of anthrax inoculations in the bilateral ankles, knees, and elbows is granted. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs