Citation Nr: 1439597 Decision Date: 09/05/14 Archive Date: 09/09/14 DOCKET NO. 08-28 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for chronic fatigue, to include as a residual of Anthrax vaccination injections. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from November 1968 to April 1969, July 1971 to February 1972, February 2002 to May 2002, September 2003 to October 2003, October 2004 to November 2004 and in May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran's claim was previously remanded by the Board in July 2010. In March 2010, the Veteran testified at a travel Board hearing conducted before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In April 2010, the Veteran submitted additional argument and evidence accompanied by a waiver of the Veteran's right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2013). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Chronic fatigue is a residual of an in-service Anthrax vaccination. CONCLUSION OF LAW Service connection for chronic fatigue as a residual of an in-service Anthrax vaccination is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Board must discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his claims. In this respect, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter sent to the Veteran in June 2007, advised the Veteran with what information or evidence is necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines the disability rating, and effective date. The June 2007 VCAA letter was sent prior to the rating decision in December 2007. Therefore, VA fulfilled its duty to notify. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. Private medical records from St. Francis Memorial Center, Memorial Health Clinic, and Grand Island Surgery Center are also associated with the record. The Veteran has not identified any treatment records aside from those that are already of record, nor is there any indication that the Veteran has sought additional treatment relevant to the instant appeal. Pursuant to the July 2010 Board remand, VA provided the Veteran with a chronic fatigue syndrome examination and obtained a medical opinion addressing whether chronic fatigue syndrome had its onset during or was caused by active service. The examination was rendered in September 2010. The chronic fatigue syndrome examination and opinion are adequate, as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing and provided reasoned analysis to support the medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was also provided an opportunity to set forth his contentions during a travel Board hearing in March 2010, which fulfilled the requirements set forth by Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). In July 2014, the Board notified the Appellant that the Veterans Law Judge who held the March 2010 travel Board hearing in this appeal had retired. The Appellant was offered the opportunity for another Board hearing before a different Veterans Law Judge, or to consider the appeal based on the evidence of record. See 38 U.S.C.A. § 7107(c). The Appellant failed to respond and the Board bases its decision on the evidence of record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. Analysis The Veteran has consistently contended that as a result of his third Anthrax vaccine, received in August 2004 he has suffered from fatigue, and malaise. The Veteran stated at his March 2010 travel Board hearing that he became extremely ill after his anthrax vaccine. The Veteran reported that he was evaluated for chronic fatigue syndrome, and that the physician stated that he was very close to a full diagnosis of the condition but that he did not meet all the criteria. The Veteran reiterated that he did not meet the strict definition for chronic fatigue syndrome. The Veteran has also submitted literature from the internet which discusses the potential side effects of Anthrax vaccines. A clinical summary from October 2004 indicates that approximately five to six days after receiving his third Anthrax vaccine, the Veteran felt nauseous with decreased appetite, increased gas and diarrhea, feelings of fevers, increased headaches, swelling to his right forearm and knuckles, joint pain to his right upper and left lower extremity, generalized weakness, fatigue, malaise, and flu-like symptoms. A January 2005 review of the Veteran states that the Veteran continued to report chronic fatigue with irregular sleeping patterns. The medical review of the Veteran determined that the Veteran had a vaccine-related adverse event. The Veteran experienced severe and persistent cephalgia, myalgias with chronic fatigue and generalized weakness following the Anthrax vaccination. In December 2007 the Veteran underwent a fibromyalgia examination, where he reported continued complaints of fatigue. The Veteran stated that he was never diagnosed with chronic fatigue syndrome or fibromyalgia. In diagnosis, the examiner concluded that the Veteran suffers from chronic musculoskeletal pain syndrome. The examiner also diagnosed the Veteran with significant fatigue, finding that there is a significant history of sleep abnormality. The examiner stated that the etiology of the condition is unclear, but that it might be associated with his chronic musculoskeletal pain complex. Other etiologies would include psychiatric condition or sleep apnea. A private physician submitted a letter on the Veteran's behalf dated June 2008. The physician stated that the Veteran suffers from general malaise, among other symptoms. The physician concluded that he considered it likely that the Veteran's conditions exist as a result of the Anthrax vaccine. The record also contains numerous complaints and diagnosis for weakness, malaise, fatigue, arthralgia and myalgia. In September 2010 the Veteran underwent a VA examination for his chronic fatigue syndrome. The examiner reviewed the evidence of record, and made specific reference to a October 2007 rheumatology examination. The examiner noted a history of debilitating fatigue, which is constant. The examiner diagnosed the Veteran with chronic musculoskeletal pain syndrome, with fatigue associated with the diagnosis. The examiner determined that the Veteran's fatigue is severe enough to reduce or impair average daily activity below fifty percent of the Veteran's previous activity level. However, the examiner found that other conditions that may produce similar symptoms were not excluded by thorough evaluation, and the Veteran's fatigue has known etiologies. In rationale, the examiner found that the Veteran has a history of fatigue. The examiner stated that the Veteran "demonstrates diagnostic components of chronic fatigue syndrome, however, he does not meet the most significant criteria which is a lack of any other specific cause or etiology to account for his fatigue." The examiner determined that the Veteran experiences chronic fatigue, which is at least as likely as not a symptom of other conditions and not a diagnosable disease in and of itself. The examiner noted that both service connected and non-service connected disabilities impact and cause the Veteran's fatigue. Specifically, the Veteran's chronic pain from arthalgias, myalgias, his service connected chronic spine condition, sleep disturbance, obstructive sleep apnea, and cardiac disease all contribute to the Veteran's fatigue. The examiner opined "that it is less likely as not that the Veteran has chronic fatigue syndrome (a definable, specific disease entity) that is due to, a result of or residual of [an anthrax vaccine]". The Board notes the ample evidence which shows that the Veteran has experienced chronic fatigue since the administration of the Anthrax vaccine in service. A formal finding based on the necessary criteria for chronic fatigue syndrome has not been made by a medical professional. The September 2010 VA examiner's opinion was well reasoned offered ample explanation to the Veteran's condition. The examiner also added, however, that the fatigue experienced by the Veteran was a consequence of the Anthrax vaccination and was also associated with other residuals of the vaccination which have already been service-connected. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); See also Prejean v. West, 13 Vet. App. 444 (2000). Therefore, resolving the benefit of the doubt in the Veteran's favor, the Board concludes that service connection for fatigue as a residual of an in-service Anthrax vaccination is in order. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. ORDER Entitlement to service connection for chronic fatigue as a residual of an in-service Anthrax vaccination is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs