Citation Nr: 1622783 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 14-20 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a skin disability, to include as due to side effects of Anthrax vaccine, or as secondary to service-connected residuals of right wrist injury. 2. Entitlement to service connection for sleep apnea, to include as due to side effects of Anthrax vaccine. 3. Entitlement to service connection for fatigue and extreme tiredness, to include as due to side effects of Anthrax vaccine. 4. Entitlement to service connection for joint pains, to include as due to side effects of Anthrax vaccine. 5. Entitlement to service connection for numbness in the hands, to include as due to side effects of Anthrax vaccine. 6. Entitlement to service connection for side effects of Anthrax vaccine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to October 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a RO hearing in February 2014. A transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for a skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's currently diagnosed sleep apnea has not been shown to be at least as likely as not causally related to his active service, to include as due to Anthrax vaccinations. 2. There is no competent medical evidence of a current disability manifested by fatigue and extreme tiredness. 3. There is no competent medical evidence of a current disability manifested by joint pains. 4. There is no competent medical evidence of a current disability manifested by numbness in the hands. 5. There is no competent medical evidence of a current disability due to side effects of Anthrax vaccine. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for fatigue and extreme tiredness have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The criteria for service connection for joint pains have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The criteria for service connection for numbness in the hands have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 5. The criteria for service connection for side effects of Anthrax vaccine have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in February 2013 satisfied the duty to notify provisions with respect to the service connection, and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating in the event of award of the benefit sought. In addition, the duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service and post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided VA medical examinations in May 2013 in conjunctions with the claims on appeal. With respect to the issues decided herein, each examination report reflects a review of the claims file, a pertinent history and all clinical findings and opinions necessary for proper adjudication of the Veteran's claims, and are therefore adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the Veterans Law Judge (or Decision Review Officer (DRO) as appropriate) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's February 2014 RO hearing, the Veteran was assisted at the hearing by a Veterans Service Representative (VSR). The VSR and the DRO solicited information regarding any outstanding evidence pertinent to the claim on appeal and asked questions to ascertain the onset of the Veteran's symptoms and any relationship between any current disabilities and service. The hearing focused on the evidence necessary to substantiate the Veteran's claims for service connection. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the VSR. Therefore, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service connection may be granted for a disability resulting from 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 may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Veteran is seeking service connection for sleep apnea, fatigue and extreme tiredness, joint pains (all joints), and numbness in the hands, all claimed as side effects of Anthrax vaccine. The Veteran's service treatment records reflect that he received the three rounds of the Anthrax vaccinations in May and July 1999. However, they are negative for any complaints of fatigue, joint pain, or numbness thereafter. On his September 1999 service separation examination report, the Veteran denied history of any swollen or painful joints, adverse reaction to serum, drug, or medicine, painful shoulder or elbow, recurrent back pain, or trick or locked knee. Clinical evaluation was normal except for identifying body marks, scars, tattoos, and psychiatric evaluation. However, the medical evidence of record fails to show a current diagnosis of the claimed conditions, except for sleep apnea. The Veteran was provided a VA general medical examination in May 2013, for the alleged disabilities. There were no diagnoses made with regard to any condition relating to fatigue and extreme tiredness, joint pains, numbness of the hands, or side effects of Anthrax vaccine. Initially, the Veteran does not assert any symptoms other than skin rash, sleep apnea, fatigue, joint pains, and numbness in the hands due to the side effects of Anthrax vaccinations. Receipt of Anthrax vaccinations itself is not an actually disabling condition with no evidence of any resulting disability. The record does not show any clinical findings of any disease process or injury that could be considered secondary to, caused by, a continuation of, or aggravation of Anthrax vaccinations. In this regard, the May 2013 VA examiner provided the following opinion: A review of medical literature lists multiple side effects from the anthrax vaccination (as it does with all vaccinations). Most of the side effects are mild with onset within hours/days of the injections. There are a few more severe side effects with the vaccine but these side effects are usually manifest in the time after the injections. None of the veteran's side effects were manifested until years after he left service. A review of the veteran STRs [(service treatment records)] indicated no side effects or reactions to his vaccinations in the immediate post injection time frame or for 3-5 months after the injections. The primary side affects (sic) of the vaccine would cause local muscle soreness, but has not been found to cause migrating joint pain and muscle fatigue many years later. Therefore, based on a review of the veteran's STRs (which indicated no reaction or side effects to his inoculations), his current medical records (VAMC [(VA Medical Center)] records with no complaints of joint pain, muscle weakness or numbness in the hands), review of the medical literature and clinical experience and expertise, the veteran's sleep apnea, numbness in hands/joint pains, fatigue is less likely than not proximately due to or the result of his anthrax vaccinations. To that effect, a November 2009 VA psychology consultation report reflects that the Veteran denied any chronic pain. VA treatment records dated May and December 2009, August 2010, and April and August 2011 reflect that the Veteran reported no pain. The May 2013 VA examination report notes that the Veteran did not have or had ever had a hip, thigh, shoulder, arm, peripheral nerves, ankle, back, knee, lower leg, or wrist condition. The Veteran stated that he got pain in multiple joints at times without any precipitating events or activities. He stated that he began having the pains in about 2006 to 2007 and he denied complaining about it to his medical providers. It was noted that he required no treatment for the symptoms. He stated that there was no pattern to the onset, duration, or location of the pain, but that it was always a sharp pain. With regard to the numbness in the hands, the Veteran stated both hands went to sleep at times. He stated that it usually seemed to happen while he was sleeping and he had to shake the hands to get them to 'wake up.' He reported the symptoms began in about 2006 or 2007. He required no treatment except shaking the hands when they fell asleep. He denies any other neurological symptoms in the hands or arms/legs. A July 2013 VA primary care physician note reflects that the Veteran inquired as to the possible long term effects of Anthrax vaccine and noted tendency for his skin to have a rash and pain in large joints off and on since vaccinations. The physician noted that the Veteran worked as a truck driver and did some physical work but he got relief from his joint pains with Acetaminophen as needed, which he did not take daily. It was noted that he did not describe synovitis, joint swelling or redness. In November 2013, he complained of neck pain but denied recurrent neck pain, only transiently since high school. In a December 2013 VA mental health record, the Veteran reported occasional joint pain as a stressor in life. However, the counselor noted the Veteran did not have chronic pain/illness and there was no need for pain consultation. In VA psychology individual psychotherapy notes dated May, June and July 2014, the Veteran denied current concern of pain and that he had been seen for treatment of pain. In October 2014, he reported concern with back pain. A December 2015 VA mental health note shows an assessment of arthralgia (pain in joint, site unspecified), diagnosed on July 2013, and that the Veteran reported experiencing chronic pain. However, in a VA nursing note, evaluation for myalgia and arthralgia (body/muscle aches and pain) was negative. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). In this regard, a symptom standing alone does not constitute a disability without an identified basis for the finding or symptom. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) (Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. West, 239 F.3d 1356, 1361-62 (Fed. Cir. 2001). No underlying pathology relating to the reported fatigue, joint pains, or numbness has been diagnosed or identified, nor is there any objective evidence of an illness, disease, injury, or limitation of function, and as such, right leg pain alone does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-62 (Fed. Cir. 2001). Furthermore, the May 2013 VA examiner opined that the Veteran's numbness in the hands, joint pains, and fatigue was less likely than not proximately due to or the result of his Anthrax vaccinations. In reaching this conclusion, the examiner noted that the numbness experienced with the vaccine is a local symptom that would occur at the injection site, not distal to the site, and that it was unlikely that vaccine given in 1999 would cause symptoms of joint pain and muscle fatigue 7 to 9 years after the fact as the Veteran reported such symptoms began around 2006 to 2008. In a February 2014 written statement, the Veteran's then-fiancé, C.S. reported that the Veteran started having skin rash, sleep and fatigue problems when he returned home from service. However, her statements as to the exact onset of the symptoms are less than credible as they are inconsistent with the Veteran's reports of record. Specifically, in a May 2005 VA treatment report, the Veteran reported his skin rash began in August 2004 and during his VA examination, he reported his joint pains and fatigue began around 2006. Relative to the Veteran's claim for sleep apnea, VA treatment records show a current diagnosis of obstructive sleep apnea. However, the medical evidence of record does not relate the Veteran's sleep apnea to his service. The May 2013 VA examiner provided an opinion that the Veteran has a thick neck and is moderately obese; these were the most likely cause of his currently diagnosed obstructive sleep apnea. The Board finds the May 2013 VA medical opinion to be highly probative on the issue of etiology of the Veteran's sleep apnea in light the explanation provided by the physician and his expertise in this matter. There is no controverting medical evidence of record. The Board recognizes that the Veteran believes that he suffers from a current chronic disability manifested by sleep apnea, fatigue and extreme tiredness, joint pains, numbness in the hands, as a result of his in-service Anthrax vaccinations. However, the Board finds that the Veteran lacks the requisite medical expertise to render a medical diagnosis. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person, such as the Veteran, is competent to describe observable symptoms such as fatigue, joint pain, and numbness, the diagnosis or etiology pertaining to any chronic disability due to side effects of Anthrax vaccine involves a complex medical question, one typically determined by persons with medical training, and does not lend itself to lay opinion evidence. Id. Any disability resulting from Anthrax vaccine is not apparent from the clinical examinations, and the existence of any such malady turns on what is not observable, namely whether there is a pathological process within the body. Such disorders clearly are not one susceptible to lay diagnosis. The Board consequently finds that the Veteran is not competent to diagnose himself with a disorder resulting from side effects of Anthrax vaccinations, or provide an opinion on etiology. As such, the Board finds that a preponderance of the evidence is against the claims for service connection for sleep apnea, fatigue and extreme tiredness, joint pains, numbness in the hands, and side effects of Anthrax vaccine. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for fatigue and extreme tiredness is denied. Entitlement to service connection for joint pains is denied. Entitlement to service connection for numbness in the hands is denied. Entitlement to service connection for side effects of Anthrax vaccine is denied. REMAND With regard to the Veteran's claim for skin disability, the May 2013 VA examination report shows diagnoses of dermatitis or eczema, and infectious skin conditions. VA treatment records dated from May 2005 to December 2015 show continuing complaints of, and treatments for, skin rash on different parts of the body. The diagnoses were eczema, dermatitis, tinea corporis, and dermatophytosis of the body. During the May 2013 VA examination, the Veteran reported that he began having skin rash in October 1999 and that the rash occurred intermittently all over the body. The examiner opined that the Veteran's skin condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner provided the following rationale: The veteran has been diagnosed with tinea corporis (fungal infection) and eczema over the last 7 years. He states the skin condition comes and goes and no treatment seems to cure it but only help with the symptoms. He claims the rash began in Oct. 1999. His service treatment records indicate treatment for a laceration in May 1999. A review of the treatment records indicate no skin rashes, no infection or other complications related to the laceration and the repair of the laceration. No antibiotics were used and no erythema, swelling or drainage was reported. No rash was reported in the service treatment records. It is unlikely that the veteran's current skin condition which affects his entire body by his history is related to an uncomplicated laceration which was repaired while he was in service. However, this opinion does not address the Veteran's claim on direct service-incurrence basis, to include as due to side effets of Anthrax vaccine. Consequently, this issue is remanded for a supplemental medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)("Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records for the Veteran from the VA Medical Center in Temple, Texas, and all associated outpatient clinics, dated from March 2016 to the present. All attempts to obtain those records should be documented in the claims file. 2. Forward the Veteran's claims file to the May 2013 VA examiner or to an individual with the appropriate expertise, to determine the etiology of the Veteran's currently diagnosed skin disability. After a thorough review of all evidence in the claims file, to include the Veteran's service treatment records, the post-service treatment records, the Veteran's testimony, and his lay statements of record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin disability(ies), to include eczema, dermatitis, tinea corporis, and dermatophytosis of the body, were incurred in or otherwise related to the Veteran's military service, to include the Anthrax vaccinations in May and July 1999. A complete rationale for any opinion expressed should be provided. 3. After completing the above, readjudicate the claim. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs