Citation Nr: A21020267 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200521-86542 DATE: December 20, 2021 ORDER Entitlement to service connection for multiple sclerosis is denied. Entitlement to service connection for hysterectomy is denied. Entitlement to service connection for oophorectomy is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's multiple sclerosis began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's hysterectomy or residuals thereof began during active service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran's oophorectomy or residuals thereof began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for multiple sclerosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hysterectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for oophorectomy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to March 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2019 rating decision. In May 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 rating decision. Subsequently in a May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including multiple sclerosis are presumed to have been incurred in service if they manifested to a compensable degree within seven years of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for multiple sclerosis. The Veteran contends that she is entitled to service connection for her multiple sclerosis. In her June 2019 initial claim, the Veteran asserted that her multiple sclerosis is a result of exposure to a tainted anthrax vaccine. Multiple sclerosis is a chronic disease entitled to presumptive service connection if it manifests to a compensable degree within seven years from the date of separation from service. Here, the Veteran was diagnosed with multiples sclerosis in 2018, approximately 13 years after service. Therefore, the Veteran is not entitled to presumptive service connection for multiple sclerosis. Nonetheless, the Veteran may be entitled to service connection for multiple sclerosis if the evidence of record establishes a nexus between the Veteran's multiple sclerosis and an in-service injury. Here, as discussed above VA treatment records establish that the Veteran has a current diagnosis of multiple sclerosis, diagnosed in 2018. Further, service treatment records establish that the Veteran obtained four anthrax vaccination shots in service. However, inconsistent with the Veteran's contentions the record does not establish that the Veteran's anthrax vaccination was tainted, and the Veteran has not provided any evidence other than her lay statements to establish that she received a tainted anthrax shots. Regarding here lay statements, there is no indication as to how she would know that she received tainted anthrax shots. The Veteran's March 2005 separation exam does not note any possible complications related to the Veteran's anthrax vaccination and there is no indication of in-service symptomatology consistent with multiple sclerosis identified by the Veteran. Post service, December 2018 VA treatment records note that the Veteran has a mild early form of demyelinating condition which includes multiple sclerosis. The Veteran was subsequently diagnosed with multiple sclerosis. This supports a finding that the Veteran's multiple sclerosis manifested to a compensable degree more than 7 years post service. The Board has considered the Veteran's contentions that she received a tainted anthrax vaccination. However, the Veteran lacks the medical knowledge necessary to opine as to whether a vaccine was tainted. 38 C.F.R. § 3.159. Moreover, she offered no supporting evidence for this contention. The Veteran was afforded a VA examination for her multiple sclerosis in December 2019. The Veteran told the examiner that she began noticing variable symptoms of weakness in her arms and legs and blurry vision in 2018. In November 2018, she experienced left face numbness. The examiner opined that the Veteran's multiple sclerosis is less likely than not related to military service as the Veteran was not diagnosed with multiple sclerosis until December 2018 and there is no scientific evidence to support a likelihood that an anthrax shot (tainted or otherwise) is related to multiple sclerosis. The examiner notes that while there are some associations and theories, they are not supported by scientific evidence. The Board affords probative weight to this opinion as it is consistent with and supported by the evidence of record. The Board notes that the Veteran submitted an article in August 2019 from the internet, authored by a private attorney firm which represents veterans before VA, noting a link between the anthrax vaccination and multiple sclerosis. While the article notes that a study indicated that some Veterans who received an anthrax vaccination developed multiple sclerosis it does not provide a definitive nexus or correlation between the vaccination and multiple sclerosis, only indicating that some debilitating issues, to include multiple sclerosis and vision loss, have been reported to Walter Reed Hospital. Medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). However, treatise materials are generally not specific enough to show nexus. Id. Moreover, medical opinions directed at specific patients generally are more probative than medical treatises. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). In this case, regardless of the specificity of the article submitted by the Veteran, and the Board notes that it does not indicate causation which would support the Veteran's claim, its probative value is outweighed by the specific, reasoned opinion of the physician who conducted the December 2019 VA examination, which considered the article along with medical literature and the specific facts of the Veteran's case. Ultimately, based on the evidence of record which does not show an in-service diagnosis of multiple sclerosis, no evidence of multiple sclerosis until 2018, approximately 13 years post service and no etiological relationship between the Veteran's anthrax vaccination and multiple sclerosis, entitlement to service connection for multiple sclerosis is not warranted. Entitlement to service connection for multiple sclerosis is denied. 2. Entitlement to service connection for hysterectomy is denied. 3. Entitlement to service connection for oophorectomy is denied. The Veteran contends that she is entitled to service connection for hysterectomy and oophorectomy. VA treatment records show that the Veteran underwent a hysterectomy in August 2014. July 2019 VA treatment records note that the Veteran also underwent an oophorectomy. However, the record does not show that the Veteran sustained an in-service injury related to or resulting in the Veteran's hysterectomy or oophorectomy. Further, the Veteran's March 2005 separation examination does not note any abnormalities related to a hysterectomy, oophorectomy, or any of the Veteran's reproductive organs. The Veteran has not contended that her disabilities are related to service, any incident of service, or any in-service treatment. The Veteran underwent these procedures at least nine years post service; the medical evidence of record does not suggest that any of the Veteran's symptoms related to her hysterectomy and oophorectomy began in service and have continued since that time; and no medical expert has opined that the Veteran's hysterectomy or oophorectomy are related to military service. The record does not substantiate entitlement to service connection for either the Veteran's hysterectomy or oophorectomy. The Board acknowledges that the Veteran has not been afforded a VA examination with respect to her claims for service connection for hysterectomy and oophorectomy but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board finds that in the instant matter, there is no competent evidence that the Veteran's hysterectomy or oophorectomy may be related to service, no competent evidence of any in-service injury or event that may be etiologically related to the Veteran's hysterectomy, oophorectomy, or residuals thereof. For these reasons, the Board finds a VA medical opinion is not necessary to decide the claim of service connection for hysterectomy and oophorectomy. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). Thus, the Board finds that the preponderance of the evidence is against the claims for service connection. Entitlement to service connection for hysterectomy is denied. Entitlement to service connection for oophorectomy is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.