Citation Nr: 1112251 Decision Date: 03/28/11 Archive Date: 04/06/11 DOCKET NO. 07-18 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of anthrax vaccine, to include chronic flu-like symptoms. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to a rating in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to October 1969, from January 2003 to September 2003, and from May 2004 to October 2004, with additional service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for residuals of anthrax vaccine, hepatitis C, and a right knee disability. In January 2009, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In April 2009, the case was remanded for additional development. A May 2010 rating decision granted service connection for a right knee disability. Consequently, that matter is no longer before the Board. In the Board's April 2009 decision, it was noted that at the January 6, 2009, Travel Board hearing, the Veteran had indicated his desire to file a new claim of service connection for an anxiety disorder other than posttraumatic stress disorder (PTSD). Therefore, such matter was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. A close review of the record did not find that any action was taken in this matter; accordingly, the matter of service connection for an anxiety disorder other than PTSD is again referred to the AOJ for any appropriate action. In May 2009, the Board received a motion for reconsideration from the Veteran. Specifically, he requested reconsideration of the Board's April 2009 denials of service connection for a left knee disability and for hepatitis C. In a March 2011 ruling on the motion for reconsideration, the Board noted that no final decision had been issued in the matter of service connection for hepatitis C, and that such matter was still pending before the Board; therefore, it addressed only the matter of service connection for a left knee disability. The Board found that although the Veteran had, in conjunction with his motion for reconsideration, submitted new evidence regarding the left knee that was not part of the record at the time the Board's April 2009 decision, such evidence was not the kind of evidence for which reconsideration could be granted. The Board then advised him that such evidence could, however, be submitted in support of a new or reopened claim. Accordingly, the Board refers the evidence submitted in conjunction with the Veteran's motion for reconsideration in the matter of service connection for a left knee disability to the AOJ for clarification and any appropriate action. The matter of the rating for a right knee disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. The Veteran is not shown to have any residuals from his anthrax vaccine, to include any flu-like symptoms. 2. It is reasonably shown that the Veteran's hepatitis C is related to an event that occurred while he was in service. CONCLUSIONS OF LAW 1. Service connection for residuals of anthrax vaccine, to include flu-like symptoms, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). 2. Service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. A January 2006 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter also informed him of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in August 2006 (hepatitis C) and in September 2009 (residuals of anthrax vaccine and hepatitis C). The Veteran has not identified any pertinent evidence that remains outstanding in the matter of service connection for residuals of anthrax vaccine. In a June 2010 statement, he indicated that there may be outstanding records that would be pertinent to his claim of service connection for hepatitis C. Inasmuch as that benefit is being granted, development for such evidence is not necessary. Accordingly, the Board finds that VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Residuals of anthrax vaccine, to include flu-like symptoms. The Veteran's STRs show that he underwent a series of anthrax vaccinations twice in November 1999, and once in December 1999, May 2000, and April 2004. In August 2003, he complained of flu-like symptoms (sinus pain and pressure with yellow-green drainage, cough, upset stomach, fatigue, muscle aches and pains); acute sinusitis with questionable strep throat was diagnosed. In an October 2004 line of duty determination, he reported that upon returning from deployment to Southwest Asia in September 2004, he found a left rash on his wrist and, over the next month, began to experience flu-like symptoms. He was treated for these complaints again in November 2004; he described his flu-like symptoms as intermittent fatigue and myalgias. The treating physician stated the Veteran's fatigue was of uncertain etiology, and noted that he had a history of hepatitis C. Private treatment records from D.Y., D.O. show that in February 2000, the Veteran presented with a cough. He denied any chills, sweats, rigors, nausea, vomiting, or diarrhea. It was noted that he had just returned from Saudi Arabia. After an examination, which included a normal chest X-ray, bronchitis and early pneumonia were diagnosed. In May 2001, it was noted that the Veteran had had endoscopic sinus surgery a few years ago, and that he had a history of allergies. He complained of increased drainage with some coughing, but denied any headaches. Allergic rhinitis with sinusitis was diagnosed. April 2002 to October 2006 treatment records show periodic complaints of sinus pressure, congestion, cough, and/or post-nasal drip; either sinusitis or bronchitis was diagnosed. A November 2004 X-ray of the paranasal sinuses was normal, and X-rays of the chest in November 2004, December 2006, August 2007, and in June 2008 were also normal. In November 2007, the Veteran presented with throat congestion and a cough; upper respiratory infection was diagnosed. In June 2008, it was noted that he was developing a Parkinsonism tremor. At the January 2009 Travel Board hearing and in a statement received in July 2009, the Veteran noted that he had provided treatment records to show that from 2000 to 2007, he was treated for flu-like symptoms. He also stated that he continued to experience flu-like symptoms and had difficulty with fatigue. He further stated that he believed these conditions to be related to the anthrax shots he received in service. On September 2009 VA examination, the Veteran complained of on-and-off sinus problems that had been occurring repeatedly for the past nine years, and noted that he had been deployed overseas several times during that nine-year period. He also indicated that his sinuses were still bad; that he experienced pain in the top of his head, and in his jaws and teeth; and that he took Allegra D twice daily. A review of the claims file found that the Veteran flu-like symptoms began in 2000, with symptoms of sinus pain and pressure with yellow-green drainage, cough, upset stomach, fatigue, and muscle aches and pains/myalgias persisting until 2007. Private treatment records also showed intermittent episodes of sinus problems, fatigue, and bronchitis from 2000 to 2007. In 2008, Parkinsonism was noted. A physical examination was essentially normal and X-rays of the Veteran's paranasal sinuses were also negative. Based on the foregoing, the examiner stated that there were no apparent flu-like symptoms evident in the file apart from the Veteran's anecdotal report. Postservice treatment records showed ordinary problems of sinus allergies with antibiotics dispensed periodically. The examiner further noted that these same treatment records had been silent for the past two years regarding any such symptomatology, and that "[n]othing out of the ordinary appear[ed] to be evident," apart from the Veteran's noted Parkinson's disease and allergic rhinitis (which was managed by antihistamine therapy). For these reasons, it was the examiner's opinion that, "There [was] no objective evidence to support Anthrax vaccination as having caused any residuals or sequelae." The Veteran alleges he suffers from chronic flu-like symptoms that are a result of the anthrax vaccinations he received in service. As his STRs show he received anthrax vaccinations in service, what remains necessary for him to establish service connection for the claimed disability is evidence that he has a residual disability from anthrax vaccinations. The only medical evidence that addresses whether the Veteran suffers from chronic flu-like symptoms, and whether such are related to his service (to include as due to the anthrax vaccinations therein), is the report from the September 2009 VA examination wherein the examiner opined that there was "no objective evidence to support Anthrax vaccination as having caused any residuals or sequelae . . . ." The examiner explained that based on her review of the Veteran's STRs and postservice treatment records, there was no evidence of flu-like symptoms apart from the Veteran's anecdotal reports. The examiner found instead that the Veteran suffered from allergic rhinitis, which she noted was an "ordinary problem" and well-managed by antihistamine therapy. She also noted that after 2007, the Veteran's treatment records were silent for any symptomatology related to allergic rhinitis. As the September 2009 VA medical opinion is by a physician (who is qualified to provide it), and is based on a review of the record and is supported by an explanation for the rationale of the opinion, it has substantial probative value. Because there is no competent evidence to the contrary, the opinion is persuasive. The Board acknowledges the Veteran's allegations that he has suffered from flu-like symptoms continuously from 2000 to the present, and notes that a disorder may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The Board also recognizes that the Veteran is competent to testify as to observable symptoms, like sinus pain and pressure, nasal drainage, cough, upset stomach, fatigue, and muscle aches and pains, and finds no reason to question the credibility of his lay accounts regarding these symptoms. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is . . . limited to that which the witness has actually observed, and is within the realm of his personal knowledge"). However, whether the symptoms of which the Veteran complains constitute a chronic flu-like syndrome related to anthrax vaccination is a medical question. The medical evidence in the record, which consists of the Veteran's STRs, postservice treatment records, and September 2009 VA examination report, does not show that he has a chronic flu-like syndrome. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (In the absence of proof of a current chronic disability for which service connection is sought, there cannot be a valid claim of service connection.) While the Veteran may be sincere in his belief that he has chronic flu-like symptoms that are related to the anthrax vaccines he received in service, his expressions of such belief have little, if any, probative value. The diagnosis of a chronic flu-like syndrome due to an anthrax vaccination is a complex medical question not capable of resolution by mere lay observation; it requires medical expertise. The Veteran is a layperson with no medical training; he does not cite to any medical texts or treatises to support his self-diagnosis and/or theory of causation; and he does not offer any explanation of rationale for his opinions. See Jandreau v. Nicholson, 492 F.3d 1372,1377 (Fed. Cir. 2007)(Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.). The preponderance of the evidence is against the Veteran's claim of service connection for residuals of anthrax vaccine. Hence, the benefit of the doubt doctrine does not apply; the claim must be denied. Hepatitis C. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis related to hepatitis C. They do show that in September 1969, he was treated for injuries sustained while riding as a passenger in a car that was struck by another vehicle on the Pennsylvania Turnpike. He was treated initially at Ephrata Community Hospital and then transferred to the U.S. Naval Hospital for further care. The Veteran was on liberty at the time of the accident, and service personnel records document that the injuries he incurred in the accident were considered to have been sustained in the line of duty and not due to misconduct. An attached police report shows that the vehicle in which the Veteran was a passenger was struck from behind, rolled over on its left side and caught fire. The vehicle's driver was pinned in the car and burned to death. Postservice VA and private treatment records (in particular, those from Dr. F.W.J.) show that the Veteran had hepatitis C diagnosed in 1997, and receives ongoing treatment for such disease. On August 2006 VA examination, chronic hepatitis C was diagnosed. The examiner noted that the Veteran's risk factors (as reported by the Veteran) included exposure to blood and bodily fluids while in a motor vehicle accident in service, exposure to bodily fluids via contamination when given vaccines via an air gun in service, and possibly a tatoo in the 1990s. The examiner did not opine regarding the likely etiology of the Veteran's hepatitis C. On September 2009 VA examination, chronic hepatitis C was diagnosed. After a review of the claims file, which included the Veteran's STRs, the examiner identified the same risk factors as those noted during the August 2006 VA examination, and opined that the Veteran's, "Exposure to bodily fluids would be the more likely exposure risk, at least as likely as not, risk factor noted during time of military service." The examiner explained that while vaccinations in service and the Veteran's tattoo were "less likely" causes of his hepatitis C contamination, his "history of the motor vehicle accident [was] a compelling history of significant body fluid/blood exposure." In various statements received from the Veteran, he states that when he was transported to Ephrata Community Hospital immediately following the September 1969 motor vehicle accident, he was "covered in blood" from the driver of the vehicle in which he had been a passenger. In a letter received in June 2009, the medical records department at Ephrata Community Hospital stated they had "checked [their] master patient index and [were] unable to find indications of treatment at [their] facility." The evidence shows that the Veteran was a passenger in a serious motor vehicle accident while in service. Although there is no evidence that he was covered in the driver's blood, as claimed, based upon the nature and severity of the motor vehicle accident (wherein the driver was pinned by the vehicle and burned to death) it may be reasonably conceded that the Veteran was indeed exposed to bodily fluids from the driver of the vehicle. Postservice medical evidence shows that hepatitis C has been diagnosed since 1997. In September 2009, a VA physician opined, in essence, that the Veteran's motor vehicle accident in service provided a compelling history of significant fluid/blood exposure, and that this was his most likely risk factor for acquiring the hepatitis C virus infection. Hence, the evidence of record supports that the Veteran's hepatitis C was incurred in service, and service connection for hepatitis C is warranted. ORDER Service connection for residuals of anthrax vaccine, to include chronic flu-like symptoms, is denied. Service connection for hepatitis C is granted. REMAND Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. Here, a May 2010 rating decision granted service connection for a right knee disability, rated 10 percent, effective from November 2, 2005. In a statement received in July 2010, the Veteran filed a timely NOD expressing disagreement with the rating assigned. Specifically, he argued that his right knee disability meets the criteria for a 20 percent rating. The RO has not issued an SOC in this matter. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. The Veteran is advised that his claim seeking a rating in excess of 10 percent for his right knee disability is not before the Board at this time, and will be before the Board only if he timely files a substantive appeal after an SOC is issued. Also, in July 2010 (in association with his NOD), the Veteran submitted new evidence (a June 2007 medical report concerning his right knee disability from Tristan Associates). This evidence is pertinent to his claim, has not been considered by the RO, and the appellant has not waived initial AOJ consideration of this evidence. See Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following: The RO should review the file (specifically including an initial review of the aforementioned evidence submitted without a waiver) and issue an appropriate SOC in the matter of entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in this matter, he must submit a timely substantive appeal. If he timely perfects an appeal in this matter, it should be returned to the Board for appellate consideration, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs