Citation Nr: 21013191 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-15 640 DATE: March 8, 2021 ORDER Service connection for a medically unexplained chronic multi symptom illness (MUCMI) (claimed as residuals of anthrax vaccine to include nausea, vomiting, and muscle aches) is granted. FINDING OF FACT The Veteran has signs or symptoms of undiagnosed illness and MUCMI, i.e. muscle pain and gastrointestinal signs or symptoms, that became manifest during active service in the Southwest Asia theater of operations. History, physical examination, and laboratory tests cannot attribute his symptoms to any known clinical diagnosis. CONCLUSION OF LAW The criteria for entitlement to service connection for MUCMI have been met. 38 U.S.C. §§ 1110, 1117, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from April 1995 to April 2000 and the United States Army from October 2002 to March 2006. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The RO continued to deny the application to reopen the Veteran’s claim for anthrax residuals, entitlement to service connection for a skin disability and sleep apnea, and denied a compensable disability rating for the Veteran’s bilateral hand disability. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal. In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In a March 2020 Board decision, the Board reopened and remanded the claim for anthrax residuals; and, denied the claim for compensable disability ratings for the service-connected bilateral hand disability. Additionally, the claims for entitlement to service connection for a skin disability and obstructive sleep apnea were remanded for further development. In an August 2020 rating decision, the RO granted entitlement to service connection for a skin disability and obstructive sleep apnea; thus, resolving those claims previously on appeal. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Veteran’s DD-214 indicates service in Kuwait from April 2004 to May 2005. Thus, the Veteran has established service in Southwest Asia. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a MUCMI; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and functional gastrointestinal disorder including irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The term “objective indications of a qualifying chronic disability” includes both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(2)(5). Entitlement to service connection for residuals of anthrax vaccine to include nausea, vomiting, and muscle aches. The Veteran contends that he has residual symptoms from his anthrax vaccines received during his active military service. Service treatment records (STRs) reflect that the Veteran received anthrax vaccines in June and July of 1998. There were no immediate reports of symptoms following the anthrax vaccines. In January 2000, the Veteran reported frequent trouble sleeping. A March 2002 Gulf War Registry Examination reflects that the clinician wrote an assessment that the Veteran has no known exposures while in the Gulf, although he reports joint pains since having received the anthrax vaccine. He noted that the Veteran has retropatellar pain syndrome and mild joint hypermobility syndrome. He also had generalized low pain threshold with problems with headaches, TMJ syndrome, and other multiple joint discomfort, and has been treated with an antidepressant for this. The Veteran was referred to a mental health evaluation to rule out possibility of depression contributing to his pain syndrome. The July 2002 enlistment report of medical history, for his second period of service, reflects that the Veteran self-reported that he was currently in good health. An April 2005 report of medical history reflects complaint of swollen or painful joints; adverse reaction to serum, food, inspect strings or medicine; numbness or tingling; and frequent or severe headache. In April 2005, the Veteran complained of nausea. Additionally, he complained of joint pain that was attributed to his knees. The Veteran reported that ever since he got his first shot of anthrax [vaccine], his recovery is not the same. In May 2005, he began to complain of frequent trouble sleeping. Post-service, VA treatment records from May 2007 reflect that a rheumatology note from Dr. Ercegovak and Dr. Luk notes that the Veteran complained of pains in his hands, wrists, knees, ankles, and foot consistent with chronic pain syndrome. The Veteran insisted that his symptoms are due to an anthrax vaccine given in 1998. They reported that they do not have data to support this. In June 2007, the Veteran submitted a page from an article he reported was from the Centers for Disease Control and Prevention (CDC) regarding the anthrax vaccine. It noted that mild problems include soreness, redness, or itching, lump, muscle/joint aches, headaches, fatigue, chills/fever, nausea. It noted that independent civilian committees have not found anthrax vaccination to be a factor in unexplained illnesses among Gulf War veterans. An August 2007 VA physician noted that the Veteran complained of myalgias, arthralgias, headache, nausea, chills/fevers. He reported that he was in the Gulf between June 1998 and December 1998, spending 12 to 15 days ashore in Dubai. He denied exposures other than anthrax vaccine six times. He reported having the immunizations between June 1998 and December 1998. He reported that the first dose caused swelling and redness in his left upper arm. He stated that symptoms started in a few weeks. He stated that first, he had left foot pain (a stress fracture was found), then nausea/vomiting (now morning nausea and with migraines weekly), then muscle aches left trapezius, then myalgias a few months. He was seen in the rheumatology clinic in May for chronic pain but had no rheumatological diagnosis. He was seen in orthopedics for knee pain and an MRI revealed no significant lesions other than chondromalacia patellae. A VA treatment note from November 2007 reflects that the Veteran was on tramadol which he reported he takes rarely for nausea. In August 2013, the Veteran reported difficulty with nausea/vomiting for about a month which has resolved over the last two weeks. In December 2013, VA treatment records reflect that the Veteran complained of obstructed breathing since August. He reported snoring and a concern for sleep apnea. A sleep study revealed obstructive sleep apnea. In May 2016, the Veteran reported that he has a number of joint conditions for which he is currently service-connected; he also has other pain related conditions including headaches, TMJ syndrome, and other multiple joint discomfort, and has been treated with tricyclic antidepressants in the past for this. During the January 2020 Board hearing, the Veteran testified that as soon as he got the shot, he had some redness and reaction in his left arm. He reported that ever since then, he noticed weakness, chills, choking, and nausea. A June 2020 General Medical Gulf War examination reflects that the Veteran’s medical history was indicative of skin disease and scars and respiratory conditions. The Veteran was diagnosed with an illness for which no etiology was established, noted as subjective residuals of anthrax vaccine, currently no objective findings. The Veteran reported muscle aches that began a week or so into 1998 after the anthrax vaccine. He reported that the next day after the vaccine, he had redness in his left arm. He reported nausea and vomiting as well. He reported that when he got out in 2000 from the Navy, he complained about his symptoms. He reported that he is still suffering from symptoms such as nausea and muscle aches. The examiner clarified that he had a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. For the following reasons, the Board finds that entitlement to service connection for MUCMI are warranted. The evidence reflects that the Veteran served in Southwest Asia, and he has competently stated that he suffered from muscle aches and nausea and vomiting, which are gastrointestinal signs and symptoms specifically listed as signs or symptoms of a MUCMI, since service. 38 C.F.R. § 3.317 (b)(10). Additionally, the record reflects that the Veteran had these signs and symptoms while he was in Kuwait. An April 2005 report of medical history reflects complaint of swollen or painful joints; adverse reaction to serum, food, inspect strings or medicine; numbness or tingling; and frequent or severe headache. In April 2005, the Veteran complained of nausea. Notably, the Veteran’s symptoms have fluctuated throughout this entire period on appeal. However, during at least part of the period on appeal, his nausea and vomiting have been symptomatic (noting that he was on medication for it) and he has complained of muscle aches. While the claims file does reflect conflicting evidence, a remand for yet another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. See 38 C.F.R. § 3.304 (c); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’“ (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Notably, while the Veteran has complained of headaches, joint pain, and fatigue, service connection for obstructive sleep apnea, migraine headaches, and pain in various joints has been granted. Any further consideration of these symptoms as part of a MUCMI is not warranted. For the foregoing reasons, the evidence for this claim is at least in a state of relative equipoise. The Veteran served in the Southwest theater of operations during the Persian Gulf war and has a medically unexplained chronic multisymptom illness that manifested during his active military service. Finally, while the Veteran sincerely believes that his cluster of signs and symptoms is a direct result of anthrax vaccines, no medical professional has provided a positive nexus opinion in that regard, and the grant of service connection based on the medical opinion in this case is not based on the Veteran’s anthrax vaccine theory. The Veteran is certainly competent to describe his observable symptoms, but a determination as to whether the Veteran’s symptoms of nausea, vomiting and muscle aches resulted from anthrax vaccines is beyond the scope of a lay person’s knowledge. As such, his assertions in this regard are not competent or probative, and the Board’s grant of service connection is not based on a finding that links the Veteran’s anthrax vaccines to his current symptoms. Rather, the Veteran’s reported symptoms are noted in the medical records, and a VA examiner could not attribute them to a known clinical diagnosis. Accordingly, the criteria for service connection for symptoms of nausea, vomiting, and muscle aches, as a MUCMI, is therefore warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.