Citation Nr: 18147802 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-22 012 DATE: November 6, 2018 ORDER Service connection for muscle weakness, to include as due to reaction to anthrax vaccine is denied. Service connection for fibromyalgia, to include as due to reaction to anthrax vaccine is denied. Service connection for low back disability, to include as due to reaction to anthrax vaccine is denied. Service connection for joint problems (knees and ankles), to include as due to reaction to anthrax vaccine is denied. Service connection for inability to walk, to include as due to reaction to anthrax vaccine is denied. Service connection for a neck disability, to include as due to reaction to anthrax vaccine is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of muscle weakness or of a disability related to muscle weakness due to reaction to anthrax vaccine. 2. The Veteran does not have a current diagnosis of fibromyalgia or residuals of fibromyalgia due to reaction to anthrax vaccine. 3. The Veteran does not have a current diagnosis of a low back disability due to reaction to anthrax vaccine. 4. The Veteran does not have a current diagnosis of joint problems (knees and ankles) or of a disability related to joint problems due to reaction to anthrax vaccine. 5. The Veteran does not have a current diagnosis of an inability to walk or of a disability related to the inability to walk due to reaction to anthrax vaccine. 6. The Veteran does not have a current diagnosis of a neck disability due to reaction to anthrax vaccine, and a neck disability is not otherwise shown to be related to a period of qualifying service. CONCLUSIONS OF LAW 1. The criteria for service connection for muscle weakness have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 4. The criteria for service connection for joint problems (knees and ankles) have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 5. The criteria for service connection for an inability to walk have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 6. The criteria for service connection for a neck disability have not been met. 38 U.S.C. §§ 101, 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may also be granted for a 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). Generally, to establish direct service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Active military service includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2017). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA but except for the exceptions listed, only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). If a claim relates to a period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period. Paulson v. Brown, 7 Vet. App. 466 (1995). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist’s or Guardsman’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To establish status as a “veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a “veteran” for other periods of service (e.g., the veteran’s prior period of active duty) does not obviate the need to establish that he is also a “veteran” for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve “veteran” status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury incurred or aggravated during INACDUTRA. See id.; Paulson, 7 Vet. App. at 470. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran’s statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board’s fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). The Veteran contends that he has several current disabilities, to include neck disability, muscle weakness, fibromyalgia, low back disability, joint problems and the inability to walk, and that these disabilities are a result of an anthrax vaccine he received in service. Upon review of the record, there is no probative evidence to indicate current diagnoses of any of these claimed disabilities other than a neck disability. The Veteran’s October 2001 service treatment records indicate that he was healthy upon entrance with “none” stated under allergies. Service treatment records dated November 2001 indicate that the Veteran was hospitalized for four days as a result of difficulty breathing and shortness of breath. He was diagnosed with bronchospasm. These records also show that the Veteran’s mother communicated with the medical staff and informed them that he had been treated by a pulmonologist and was tested for allergens. She also stated that he had not had any reactions that past summer so they believed he “outgrew” his allergies. The service treatment records do not indicate treatment for muscle weakness, fibromyalgia, low back disability, joint problems or the inability to walk. The discharge papers stated that he was not to be exposed to chemicals as much as possible and that separation was recommended and it should happen rapidly. A November 2001 service treatment record states the medical reason for separation is systemic allergy to chemicals. A Department of Defense (DOD) medical record shows that the Veteran received two vaccinations while in service. They were both administered on the same day in October 2001 and neither one was the anthrax vaccine. There are two online articles that were made part of the claims file. One from the Defense Health Agency and it reads that DOD service members deploying for the Persian Gulf War received one to two doses of an anthrax vaccine, labeled “Vaccine A” or “Vacc A”. Other abbreviations include “AVA” and “ANT”. The other article is titled “Immunization to Protect the U.S. Armed Forces” and it reads that in 1998 a much larger immunization program began that has now administered over 5.6 million anthrax immunization to over 1.4 million troops. It also detailed that it was given on an individualized basis, based on deployment or travel to high risk areas such as southwest Asia, and Korea. There are VA examinations of record dated August 2013 in relation to the Veteran’s claims for muscle weakness, joint problems, low back disability, and the inability to walk as it relates to his joint problems and muscle weakness. All of the VA examiners concluded that there was no disability related to these claims. As these examinations were performed by qualified medical staff and done so after a review of the file and an in-person examination of the Veteran, the Board finds these examinations to be of high probative value. A July 2015 letter authored from a private provider states that there is a correlation between the Veteran’s low back disability, fibromyalgia and the anthrax vaccination received in service. This private provider also administered a Disability Benefits Questionnaire (DBQ) for fibromyalgia. The opinion is wholly conclusory and lacks a substantive rationale. This provider bases her opinion on medical literature and provides no information specific to this Veteran, other than his reporting that he was given an anthrax vaccine. As such, the Board places little probative value on this opinion. In addition, looking at the DBQ, it is unclear as to whether there is a current diagnosis of fibromyalgia and it is completely silent on whether there is a current low back disability. Even if the Board conceded, which it is not, that there are current diagnoses for both fibromyalgia and a low back disability, service connection would still not be warranted. The record shows that even though denying any allergies, the Veteran has had allergic reactions to certain things in the past. His discharge was based on his allergic reaction to chemicals. The Veteran claims that he was given the anthrax vaccine, but as stated earlier the probative evidence of record points to a finding against that claim. In addition, the private provider did not provide an opinion with clear, sufficient rationale and appears to take the Veteran’s lay assertion that he was given the anthrax vaccine without indicating medically how it is she concludes that he was given such a vaccine. While the Veteran is competent to report that he experienced symptoms of an illness in service, the Board notes that he would not be competent to self-diagnose any of the claimed disabilities. The Board acknowledges the Veteran’s own opinion that he has the claimed disabilities which are related to service, but any determination as to the presence of the claimed disabilities is medical in nature. The Veteran, as a lay person, does not have the education, training, or experience to diagnose any of the claimed disabilities or opine as to the etiology of any current related illness. See Jandreau, supra (lay persons not competent to diagnose conditions such as cancer). “Competent medical evidence” is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. Id. at 225; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). Moreover, the evidence does not persuasively show that any claimed symptoms reach the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018). The Board notes the Veteran’s contention that he had a reaction to an anthrax vaccine he received in service which caused his disabilities. The probative evidence of record indicates that the Veteran was not given an anthrax vaccine. Regardless, the Veteran’s claimed exposure to an anthrax vaccine is moot, as there is no probative evidence to indicate a current disability for any of the claimed disabilities. In regard to the neck disability, an August 2013 VA examination indicates a current diagnosis of a neck disability—mild cervical degenerative disc disease. In July 2012, the Veteran filed a claim for his neck disability, contending that it was a result of an anthrax vaccine he received in service. As stated above, the probative evidence of record shows that the Veteran was not administered an anthrax vaccination in service. In his VA 21-526 he stated that he was a member of the National Guard. Private medical records indicate that the Veteran has reported injuring his neck during drills when on reserve. He has reported the onset of symptoms as in 2008 or 2009 and has also reported the increase in severity in symptoms as occurring in 2009 after the injury. As noted above, when a claim for service connection is based on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA, or for INACDUTRA, there must be some evidence that the appellant became disabled as a result of an injury incurred or aggravated in the line of duty during the period of INACDUTRA. The Veteran’s reports are general; he has not identified a specific period of ACDUTRA or INACDUTRA during which he incurred a neck disability, and general assertions of experiencing symptoms that may have coincided during a period of ACDUTRA is not sufficient to show that he became disabled during a specific period of ACDUTRA. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes, however, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for muscle weakness, low back, joint problems with knees and ankles, inability to walk, fibromyalgia, and neck disability. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel