Citation Nr: 1123583 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 07-27 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an undiagnosed illness(es) (claimed as Persian Gulf War Syndrome or residuals of anthrax vaccination), manifested by a skin condition, flu-like symptoms, arthralgia, myalgia, headaches, nausea, malaise, and gingivitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran had periods of Air Force Reserve service from April 1980 to June 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision from the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The issue has been recharacterized as indicated on the title page to comport with the Veteran's status as a "Persian Gulf veteran." The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA must provide a medical examination when, as here, there is insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Veteran maintains that she has residual disability due to Anthrax injections. The record supports that the Veteran received two anthrax vaccinations in June 1999 and July 1999. An undated Vaccine adverse event reporting system note indicated that she suffered a painful nodule at the injection site, headache, malaise, nausea lasting one to two weeks after both injections, and sores on her gums after the first injection. A January 2000 progress note assessed adverse reaction to the anthrax vaccination, her history was most consistent with serum sickness, and the history of gingivitis was suggestive of a cell-mediated reaction. She was provided a waiver for future anthrax injections. The Veteran also submitted medical research that raises the possibility of a link between the anthrax vaccination given to military personnel and the development of various illnesses. The Veteran's DD Form 214 shows that she had foreign service in September 1990 in the Desert Shield/Storm area of responsibility. Therefore, she is a "Persian Gulf veteran" as defined by regulation. See 38 C.F.R. § 3.317. Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011. See 38 C.F.R. § 3.317(a)(1)). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A "medically unexplained chronic multi symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi- symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes information about how to establish entitlement to service connection for a disability due to an undiagnosed illness or a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. 2. After the development in paragraph 1 is completed, schedule the Veteran for a VA examination to ascertain the existence and etiology of her claimed skin condition, flu-like symptoms, arthralgia, myalgia, headaches, nausea, malaise, and gingivitis. The claims file, and a copy of this remand, should be made available for review, and the examination report should reflect that such review occurred. After examination of the Veteran, the examiner should do the following: a. The examiner should describe in detail any objective manifestations of the Veteran's symptoms of skin condition, flu-like symptoms, arthralgia, myalgia, headaches, nausea, malaise, and gingivitis. For each manifestation identified, the examiner should proffer an opinion as to whether the manifestation represents a current chronic condition. The examiner should identify with specificity any claimed symptom or manifestation that is not objectively shown either by examination of the Veteran or review of the claims folder. b. For each symptom identified in paragraph 3(a) that is currently manifested or otherwise indicated in the record, the examiner should indicate whether the manifestation can be clinically attributed to a known disability. The examiner should identify the disability to which the manifestation is attributable and opine whether it is at least as likely as not (50 percent probability or greater) that the disability is etiologically related to the Veteran's military service to include any relationship to anthrax vaccinations or service in Southwest Asia. A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. 3. Then readjudicate the claim. If the claim continues to be denied, send the Veteran and her representative a supplemental statement of the case and give them time to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).