Citation Nr: 1804110 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-20 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a disability manifested by vertigo, dizziness and headaches, claimed as a result of in-service anthrax vaccinations. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD EM Lederman, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from November 1981 to February 1982 with subsequent service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before a Decision Review Officer in December 2010 and before the undersigned in August 2013. The Board remanded the appeal in January 2015. In June 2017, the Board requested an opinion from a medical specialist under the employ of the Veterans Health Administration (VHA). The August 2017 VHA opinion and September 2017 addendum are of record, and the Veteran was provided with copies of the same and given 60 days to respond. See 38 C.F.R. § 20.903(a). FINDING OF FACT The Veteran's disability manifested by vertigo, dizziness and headaches is not related to in-service anthrax vaccinations. CONCLUSION OF LAW The criteria for service connection for a disability manifested by vertigo, dizziness and headaches, claimed as a result of in-service anthrax vaccinations, are not met. 38 U.S.C. §§ 1110, (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that his disability manifested by vertigo, dizziness and headaches are the result of anthrax vaccines that he received during his military service in the National Guard. See, e.g., August 2013 Board Hearing transcript at 4. Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish service connection the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Regarding the first element of service connection, the evidence shows that the Veteran has competently reported dizziness, vertigo and headaches throughout the appeal period, satisfying this element. Treatment for labyrinthitis was also noted in 2014, although inner ear examination was negative during the April 2015 VA examination. See, e.g., April 2015 VA examination report; August 2017 VHA opinion; February 2014 statement from J.H.M., M.D. Regarding the second element, the Veteran's service treatment records (STRs) show that he received anthrax vaccinations in July 1999, December 1999, and June 2000. He reported an onset of vertigo and nausea shortly after the first vaccination series in August 1999. A November 1999 line of duty determination report demonstrates that the Veteran had an "immunization reaction" from the anthrax vaccinations while on duty. Therefore, an in-service injury is conceded during the Veteran's National Guard service. 38 U.S.C. § 101; see 38 C.F.R. § 3.6. As to the final element of service connection, nexus, in an August 2017 medical opinion with a September 2017 addendum, the VHA expert opined that it was less likely than not that the Veteran's symptoms, including episodic vertigo, headaches and dizziness, were due to his anthrax vaccination. The VHA expert explained that reviews of the literature do not support any relationship between anthrax vaccination and episodic vertigo or chronic headaches, although acknowledging that headaches may occur as an acute reaction to anthrax vaccination, which the Board emphasizes was not endorsed by the Veteran at the time of his reaction in 1999. He also noted the Veteran's labyrinthitis and headaches may be related, since headaches are often associated with vertigo, but that there was no clear evidence that his labyrinthitis was the result of anthrax vaccinations. Additionally, he reviewed articles originally submitted by the Veteran discussing anthrax vaccinations, finding that in his opinion they carried no weight, as none of them were scientific in nature, nor did they mention headaches or vestibular dysfunction. He emphasized that no scientific reports that he reviewed documented any etiologic connection between anthrax vaccinations and the Veteran's symptoms. An April 2015 VA examiner also found that the Veteran's current symptoms were not related to his anthrax vaccinations during service. The April 2015 VA examiner reasoned that the symptoms of dizziness, headache, and nausea were very nonspecific, and that the Veteran's neurologic evaluation and complete workup at the onset of his symptoms was negative. He noted that while vestibular neuritis was indicated as a possible etiology in 1999, it is usually an isolated episode and does not persist or recur over a period of 16 years. He indicated that an article submitted by the Veteran was very vague. Additionally, he proffered the possibility that the Veteran's migraine headaches could cause his other symptoms, which is in line with the opinion of the VHA expert outlined above. Collectively, the examiners' opinions are competent, credible and probative as to the lack of a nexus in this case. There is no competent opinion to the contrary. In this regard, the Veteran, as a lay person, is competent to report symptoms that are capable of lay observation, such as headaches, dizziness and vertigo. However, he is not competent to address the relationship between said symptoms and his anthrax vaccinations years prior. Given the Veteran's lack of demonstrated medical expertise, the Board finds the VA examiners' opinions to be the most probative evidence of record as to the relationship between the Veteran's dizziness, vertigo and headaches and service, and these opinions ultimately outweigh the Veteran's contentions as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). The Board acknowledges that the Veteran alleges that the military "controls" whether or not future studies will be made with regards to the long term effects of anthrax vaccinations, and that it is doubtful that "any admission of a problem will be forthcoming." See October 2017 Statement in Support of Claim. Additionally, he calls attention to problems with quality control and sanitary conditions in the anthrax lab in Michigan and to the underreporting of casualties as a result of the anthrax shot. See August 2012 VA Form 9. The Board finds that his assertions, alone, are insufficient to overcome the presumption that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Furthermore, in October 2017, the Veteran submitted additional articles regarding the safety and efficacy of the anthrax vaccinations. One is a historical review and discussion of current controversies relating to anthrax, and the other is a discussion of the safety and efficacy of the vaccine. Neither directly discusses causation between chronic vertigo, dizziness and headaches and receipt of the anthrax vaccine years prior, nor are they otherwise specific to the circumstances of the Veteran's case. Indeed, one article indicates that while some notice headaches after an initial injection of anthrax (which again, the Veteran did not report), "it is commonly thought that these symptoms go away after a few days," and there is no longitudinal study available detailing any long-term problems following anthrax vaccination. Accordingly, the Board finds that these articles do not support the nexus element of the Veteran's claim. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a disability manifested by vertigo, dizziness and headaches, claimed as a result of in-service anthrax vaccinations, is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs