Citation Nr: 21005922 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-19 726 DATE: February 2, 2021 ORDER Entitlement to service connection for a vestibular order with ataxia and vertigo is granted. FINDING OF FACT The Veteran has a diagnosed vestibular order that is at least as likely as not etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a vestibular order with ataxia and vertigo have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION From March 1991 to August 2010, the Veteran had several periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) for the U.S. Navy Reserves. The Board notes that the Veteran submitted relevant medical records, medical literature, and evidence of Social Security Administration (SSA) disability records in January 2021. The Agency of Original Jurisdiction (AOJ) has not had the opportunity to review some of the medical evidence and literature or obtain Veteran’s SSA records. However, as the decision below grants service connection for the claim at issue, there is no prejudice to the Veteran. 1. Entitlement to service connection for a vestibular order with ataxia and vertigo Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence 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). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within one year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” shown in service, including organic diseases of the nervous system (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). A veteran is “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes the following: active duty; 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 while performing ACDUTRA; or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, such as the instant case, there must be evidence that the claimant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the claimant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). February, March, and October 2003 service treatment records indicate that the Veteran had anthrax vaccine and boosters. An October 2003 report of medical history reflects that the Veteran indicated he experienced “dizziness or fainting spells.” The report also indicates that the Veteran was involved in a motor vehicle accident in 1997. Private medical records reflect that the Veteran has a diagnosis of ataxia and vestibular disturbance with symptoms including unsteadiness and dizziness. See, e.g., September 2016 Private Medical Records. August 2018 private medical records reflect that the Veteran underwent an evaluation for dizziness and difficulty with balance. The private physician reviewed medical records including brain imaging and interviewed the Veteran. The physician determined that the Veteran appeared to have bilateral loss of vestibular function with mild ocular motor cerebellar signs. The physician opined that it was “perhaps related to a remote motor vehicle accident” but that a degenerative process was also being considered as the cause. Additional private medical records, however, reflect that the Veteran’s vestibular disorder is etiologically related to the anthrax vaccine. A February 2013 letter from the Veteran’s treating physician indicate that the Veteran has experienced progressive decline in functioning due to unsteady gait and unusual eye movements with a peculiar type of nystagmus. Further testing ruled out a diagnosis of multiple sclerosis. Based on medical literature, the physician opined that the anthrax vaccine can have side effects that include symptoms mimicking multiple sclerosis. Based on progressively worsening symptoms since 2003, the physician determined that a connection to the anthrax vaccine should be considered. In a September 2019 letter, the Veteran’s treating physician noted continued treatment of gait, balance, and vestibular disturbances. While noting the unclear etiology of the symptoms, the physician also noted that the Veteran’s “status” changed considerably subsequent to the anthrax vaccine. The physician opined that it is at least as likely as not that the Veteran’s ataxia is causally related to the anthrax vaccine. The Board notes that the Veteran submitted medical literature in January 2021 indicating that the anthrax vaccine can cause reactions resulting in permanent autoimmune and brain dysfunction. During the July 2019 Board hearing, the Veteran’s spouse of 49 years testified that the Veteran had not had symptoms of ataxia prior to service, and further testified to observing the symptoms begin during service and worsen over time. The Veteran’s spouse is competent to report witnessing this symptomology and progression. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). These statements and testimony are credible and probative of the issue on appeal. While the August 2018 private physician noted the Veteran’s vestibular function disorder may be static and related to a remote motor vehicle accident, the physician also noted that a degenerative process was also being considered. The Veteran’s treating physician, however, has determined that the Veteran’s disorder is progressive after treating the Veteran over many years, and the Veteran’s spouse has testified to observing worsening symptoms over time. The best evidence of record is the Veteran’s treating physician’s opinion, based on treatment and medical literature, that the disorder is at least as likely as not related to the anthrax vaccine. Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for a vestibular order with ataxia and vertigo is warranted. See VAOPGPREC 4-2002 (May 14, 2002) (holding that residual disability from anthrax vaccination during INACDUTRA may be considered an injury within the meaning of 38 U.S.C. § 101(24)). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.