Citation Nr: 21070685 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-37 390 DATE: November 24, 2021 ORDER Entitlement to service connection for residuals of an anthrax vaccination, specifically a gastrointestinal disorder, is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for hepatitis B is remanded. FINDING OF FACT The Veteran does not have a gastrointestinal disorder that was caused by or due to an anthrax vaccination. CONCLUSION OF LAW The criteria for establishing service connection for residuals of an anthrax vaccination, specifically a gastrointestinal disorder, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from July 1983 to July 1987 and from March 1991 to November 1991, with additional service in the Marine Corps Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a VA Regional Office (RO). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In June 2019, the Board, in pertinent part, remanded the instant issues on appeal for further development. The Board also remanded the issues of entitlement to service connection for a right elbow disability, barotrauma of the ears, and bilateral hearing loss. While the matter was in remand status, in an August 2020 rating decision, the RO granted service connection for right elbow lateral epicondylitis. Then, in a July 2021 rating decision, the RO granted service connection for bilateral barotrauma to the ears and bilateral hearing loss. Thus, these issues have been granted in full and are no longer before the Board. The remaining issues have returned to the Board for further appellate consideration. SERVICE CONNECTION Generally, to establish 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). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for residuals of an anthrax vaccination, specifically a gastrointestinal disorder, is denied. The Veteran contends that he suffers from gastrointestinal issues as a result of his anthrax vaccination in service. Service treatment records demonstrate that the Veteran received anthrax shots in February 2003, March 2003, and April 2003, and in October 2003, he had a possible anthrax reaction. There is no other record of an anthrax reaction or gastrointestinal issues in his service treatment records. Post-service treatment records are silent for any complaints, treatment, or diagnosis for a gastrointestinal condition as due to the anthrax vaccine. The Veteran underwent a VA examination in December 2019 for intestinal conditions. The examiner noted a diagnosis of diverticulitis in 2015, as reported by the Veteran. The Veteran reported that no diverticulitis was found in the intestines until 2015, at which time the Veteran was 53 years of age. The examiner opined that the Veteran's diverticulitis is less likely than not due to the anthrax vaccine. The examiner indicated that diverticula are small, bulging pouches that can form in the lining of the intestine. Diverticula are common, especially after age 40, and seldom cause problems. The examiner further explained, "Sometimes, however, one or more of the pouches become inflamed or infected. That condition is known as diverticulitis. Diverticulitis can cause severe abdominal pain, fever, nausea and a marked change in the bowel habit." The examiner continued by stating, "Diverticula usually develop when naturally weak places in the colon give way under pressure. This causes marble-sized pouches to protrude through the colon wall. Diverticulitis occurs when diverticula tear, resulting in inflammation or infection, or both." The examiner additionally noted that there are no medical literature or research study that prove that anthrax immunization can cause diverticulosis or diverticulitis acutely or remotely more than 10 years after immunization. The Board finds that service connection for a gastrointestinal condition due to the anthrax vaccine is denied. Treatment records are silent for any complaints, treatment, or diagnosis for a gastrointestinal condition that was caused by the anthrax vaccination. The Veteran has been diagnosed with diverticulitis, but the examiner stated that this condition is not caused by the anthrax vaccination. The evidence does not demonstrate that the Veteran suffers from any gastrointestinal condition that was caused by the anthrax vaccination. Accordingly, service connection for a gastrointestinal disorder due to the anthrax vaccination must be denied. The preponderance of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a back disability is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2019 decision/remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a VA examination to obtain an opinion as to the nature and etiology of the Veteran's claimed back disability. The examiner was directed to opine whether the claimed disability was directly related to service. The examiner was also directed to address whether the Veteran's service-connected right shoulder and right knee disabilities caused or aggravated any current back disorder. The Veteran was afforded a VA examination for his back in December 2019. The examiner provided a diagnosis of degenerative arthritis of the spine. The examiner did not provide an etiology opinion. In August 2021, a VA addendum opinion was obtained. The August 2021 VA examiner opined that the Veteran's degenerative arthritis of the spine is not correlated to a traumatic injury, specifically the injury sustained during the Veteran's Marine Corps Martial Arts Training in August 2004. The examiner stated, "Records remain silent of back complaints during active service, and even on chronological report of medical history on 2000 and 2005 while on reserve." The Board finds that this opinion has no probative value as it relies on the absence of evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The August 2021 VA examiner further opined that the Veteran's diagnosed degenerative arthritis of the spine is unrelated to his service-connected right shoulder and right knee disabilities. The examiner stated that, "anatomically the knee and the shoulder are unrelated to the back; therefore, a shoulder condition would in no way aggravate a back condition." The Court of Appeals for Veterans Claims (the Court) has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b) (2017). See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court has also indicated that an opinion that there is "no etiological relationship" may be insufficient to address the question of aggravation. See Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). In this case, the Board finds that the August 2021 VA examiner's opinion addressing whether the Veteran's back disability was caused or aggravated by service-connected disabilities is conclusory, as it simply states that there is no relationship with the service-connected disabilities. Thus, the Board finds that the foregoing opinion pertaining to the Veteran's back disability is inadequate with regard to the analysis of the aggravation prong. Accordingly, to ensure compliance with the directives of the June 2019 decision/remand, a VA addendum opinion should be obtained for the claimed back disability, which includes an adequate supporting rationale. See Stegall, 11 Vet. App. at 271. 2. Entitlement to service connection for hepatitis B is remanded. In the June 2019 decision/remand, the Board directed the AOJ to afford the Veteran with a VA examination to obtain an opinion as to the nature and etiology of any residuals of hepatitis B. The examiner was directed to "specifically list any residuals and note if the Veteran currently has a diagnosis of hepatitis B." The examiner was further directed to provide an opinion as to whether any residuals are at least as likely as not related to the in-service diagnosis of hepatitis B. The Veteran was afforded a VA examination for hepatitis B in May 2021. The examiner noted a diagnosis of hepatitis B in 1987. The Veteran reported the following symptoms following the 1987 infection: vague chronic general fatigue with history of Vitamin D deficiency (no longer on supplement), intermittent gross joint/muscle pain, and generalized abdominal pain with history of hernia. The examiner indicated that the hepatitis labs drawn on VA examination in December 2019 show "most commonly a resolved infection in most cases." The examiner further stated, "There is some possibility (less likely) of a chronic low level Hepatitis B infection, however, this is less likely due to the claimant having no medical history of treatment since service time. Also, recent labs (5/20/21) show NON-REACTIVE FOR HEPATITIS B SURGACE ANTIGEN AND BORE ANTIBODY." Thus, the examiner suggests that the Veteran does not currently have a diagnosis of hepatitis B. The examiner did not address the Veteran's reported current symptoms, nor did he address whether the Veteran had any residuals of hepatitis B. In light of the above, a remand is required for a new VA opinion of the claimed hepatitis B. See Stegall, 11 Vet. App. at 271. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the examiner who provided the August 2021 VA opinion for the back. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the August 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner must provide an opinion as to whether any diagnosed back condition during the claim period is at least as likely as not related to service, to include as secondary to his service-connected right shoulder and right knee disabilities. In consideration of all of the Veteran's statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran's back condition was either caused or aggravated beyond the natural progression by the Veteran's service-connected right shoulder and/or right knee disability. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Then, return the claims file to the examiner who conducted the May 2021 VA examination for hepatitis B. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the May 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner should specifically list any residuals and note if the Veteran currently has a diagnosis of hepatitis B. The examiner must opine whether any of the residuals are at least as likely as not related to his diagnosis of hepatitis B during service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.