Citation Nr: 1111676 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 07-05 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for fibromyalgia, including as secondary to anthrax vaccinations. 2. Entitlement to service connection for dysthymic disorder, including as secondary to fibromyalgia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. R. Grasman, Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force Reserves from March 1989 to April 2004 with a period of active duty from January 1991 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal was remanded by the Board in October 2009 for additional development. In October 2009, the Veteran testified in a videoconference hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. The issue of entitlement to service connection as secondary to fibromyalgia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The competent evidence of record shows that an anthrax vaccination during a period of inactive duty for training (INACDUTRA) is an injury that caused fibromyalgia. CONCLUSION OF LAW The criteria for service connection for fibromyalgia are met. 38 U.S.C.A. §§ 101(2), (24), 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal regarding service connection for fibromyalgia. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2010). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. 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) (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In this case, the Veteran has a period of active duty as well as service in the Reserves. She asserts that she received anthrax vaccinations while in the Reserves, during an inactive duty for training period, which caused her current fibromyalgia symptomatology. The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2010). INACDUTRA includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A); 38 C.F.R. § 3.6(d). In this case, the evidence shows that the Veteran has a current diagnosis of fibromyalgia by a rheumatologist. Additionally, in the September 2005 VA Compensation and Pension Examination, the VA examiner noted that the Veteran was seen by various specialists to include a cardiologist, neurologist and rheumatologist. The rheumatologist found that the Veteran's symptoms and physical assessment were consistent with fibromyalgia. The examiner noted that in the musculoskeletal examination, she had significant pain in multiple joints. Out of 18 tender points, the Veteran had 16 positive during the examination. There was also some decreased in sensation in the lower extremities. The service records, including Reserve records, show that the Veteran received anthrax vaccinations on May 1, 1999, May 15, 1999, May 29, 1999, November 6, 1999, and May 6, 2000. In February 2002, she was evaluated for suspected allergic reaction to the anthrax vaccine. She reported fatigue, weakness, unexplained weight gain, aches and pains, headaches, and loss of memory since receiving the most recent shot in May 2000. She was referred to the Walter Reed Anthrax Center. A Vaccine Adverse Event Reporting System (VAERS) report, dated in October 2002 documents the problems the Veteran experienced after receiving the anthrax vaccine. The examiner determined that the heterogeneity of the Veteran's symptoms made it difficult to prove a causal relationship to the anthrax vaccine, however there was not enough clinical evidence to disprove a causal relationship. In October 2003, a Physical Evaluation Board (PEB) subsequently found her physically unfit for service due to major depression and fibromyalgia-like syndrome. An April 2002 Line of Duty Determination (AF Form 348) reflects that the Veteran was instructed to be in a paid duty status on May 1, 1999, May 15, 1999, May 29, 1999, November 6, 1999, and May 6, 2000 in order to receive the series of anthrax injections. Also of record are copies of her Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES) which clearly show the Veteran was on INACDUTRA status on the dates in question. The Board finds that regardless of the Veteran's duty status, service connection for her fibromyalgia is warranted. As noted previously, if the Veteran became disabled from an injury in either ACDUTRA or INACDUTRA, service connection may be warranted. The VA Office of General Counsel has held if the evidence establishes that an individual suffers from a disabling condition as a result of administration of an anthrax vaccination during inactive duty training, the individual may be considered disabled by an "injury" incurred during such training as the term is used in 38 U.S.C. § 101 (24). Consequently, such an individual may be found to have incurred disability in active military, naval, or air service for purposes of disability compensation under 38 U.S.C. § 1110 or 1131. VAOPGCPREC 4-2002, 69 Fed. Reg. 25176 (2004). In the VA Office of General Counsel opinion, the Veteran was a former member of the Army Reserve who received two anthrax inoculations during inactive duty training. The Veteran alleged suffering from chronic fatigue and chronic Lyme-like disease as a result of these inoculations. The General Counsel held that the Veteran may be considered to have been disabled by an injury in determining whether the member incurred disability due to active service. The General Counsel reasoned that inoculation with a vaccine involves the introduction of a foreign substance into the body and that, while the substance is intended to and generally does have a beneficial effect, adverse reactions, sometimes of a severe nature, may result. Additionally, the term "injury" in section 101(24) may be interpreted to include harm not only from a violent encounter but also from exposure to a foreign substance, such as a vaccine. The General Counsel found that the concept of "trauma," which is recognized as the cause of "injury," encompasses a broader definition that includes serious adverse effects on body tissue or systems resulting from introduction of a foreign substance. Thus, an adverse reaction to a vaccination may be considered an "injury" as that term is used in 38 U.S.C. § 101(24). See VAOPGCPREC 4-2002. The Board finds that the facts set forth in the General Counsel opinion cannot be distinguished from this case. As such, the Board finds that the Veteran's adverse reaction to the anthrax vaccine was an injury for VA compensation purposes. In this regard, the VA examination provides that the Veteran was diagnosed with fibromyalgia-like symptoms as likely as not secondary to the anthrax vaccination. The examiner explained that it appeared as if most civilian physicians were unfamiliar with the anthrax vaccination and its subsequent possible reactions. It was apparent to the examiner, however, that the military, who was most familiar with anthrax, believe at some level that symptoms that the Veteran was experiencing were as likely as not secondary to the anthrax vaccinations particularly given the onset of symptoms and the health of the Veteran prior to administration of the vaccine. Therefore, the examiner concluded that as a result of the review of the records, history and physical findings, the Veteran's current symptoms were as likely as not secondary to the anthrax vaccination. As there is a current diagnosis of fibromyalgia, an injury in INACDUTRA and a nexus between the injury and the current diagnosis, the Board finds that service connection for fibromyalgia is warranted as due to anthrax vaccinations administered during the Veteran's INACDUTRA. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for fibromyalgia as due to anthrax vaccinations is granted. REMAND The Veteran contends that she has dysthymic disorder that is secondary to her fibromyalgia symptoms. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). 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 (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). In this case, a VA examination was conducted in September 2005. The examiner diagnosed the Veteran with dysthymic disorder. The examiner also noted that the Veteran had dysthymic disorder since the late 1990s. The examiner, however, did not opine if the dysthymic disorder was due to service or to a service connected disability. Specifically, the examiner did not opine if dysthymic disorder was secondary to the Veteran's fibromyalgia. Furthermore, the Veteran was also diagnosed with migraine headaches, gastric ulcer disease, and gastroesophageal reflux disease and chest pain. Based on the evidence of record, the Board is unable to determine if the dysthymic disorder is due to the fibromyalgia symptoms, or the other non-service connected disabilities. As such, the Board finds that a VA medical opinion and/or examination is necessary to determine the etiology of the Veteran's dysthymic disorder. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to return the September 2005 VA examination to the examiner for an etiological opinion as to dysthymic disorder. If the same examiner is not available, then a VA examiner should provide another physical examination, if necessary, and provide an opinion as to the etiology of the current dysthymic disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should state whether the Veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by active service or to a service connected disability. Any opinion expressed should be accompanied by supporting rationale. 2. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs