VA Alert - Anthrax Vaccine Compensation

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For those that haven't seen this yet.

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VETERANS RESOURCES NETWORK

Dear Readers,

The latest VA General Counsel Opinion is copied below. It basically states

that a person on in-active duty for training in the Reserve, and are given

the Anthrax vaccine (or any such vaccine) can be service connected for a

disability associated with taking the vaccine as part of their Military

obligation.

-ATTENTION NOTE-- This does not mean that you will have an automatic service

connection, only that if you can show a current disability, that you were

given the vaccine, that a medical doctor connects your current disability

directly with your taking this vaccine, then you can be service connected.

File a claim and the VA has a duty to assist you in showing your

service-connected disability. Only file a claim if a doctor has diagnosis

some disability and he says it could be caused by the vaccine. Argue the

Benefit of Reasonable Doubts as provided in Law for veterans claims. If

there are no data that show your condition could be caused by the vaccine

then it would be harder. This is mainly a medical question, so consult your

Doctor.

Your Editor,

Ray B , Jr.

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Department of Memorandum

Veterans Affairs

Date: May 14, 2002 VAOPGCPREC 4-2002

From: General Counsel (022)

Subj: Meaning of ?Injury? for Purposes of Active Service ? 38 U.S.C. §

101(24)

**************************

Director, Compensation and Pension Service (21)

QUESTION PRESENTED:

Whether a former member of the Army Reserve who received two anthrax

inoculations during inactive duty training and who alleges suffering from

chronic fatigue and chronic Lyme-like disease as a result of these

inoculations may be considered to have been disabled by an injury in

determining whether the member incurred disability due to active service.

DISCUSSION:

1. The claimant had active duty service in the United States Army from May

29, 1995, to June 18, 1999, and was then assigned to the Army Reserve. In

preparation for a required two-week tour of duty in Korea, the claimant

received three anthrax inoculations, the first two of which were received

while on inactive duty training on February 12 and March 11, 2000. The

claimant received the third inoculation on March 25, 2000, while in civilian

status. The claimant was deployed to Korea from April 10, 2000, to April 24,

2000. The claimant has filed a claim with the Department of Veterans Affairs

(VA) seeking service connection for chronic fatigue and chronic Lyme-like

illness claimed to have resulted from the anthrax inoculations.

2. Pursuant to 38 U.S.C. §§ 1110 and 1131, service-connected disability

compensation may be paid for disability resulting from injury suffered or

disease contracted in line of duty ?in the active military, naval, or air

service.? Section 101(24) defines the term ?active military, naval, or air

service? as including ?active duty, any period of active duty for training

during which the individual concerned was disabled or died from a disease or

injury incurred or aggravated in line of duty, and any period of inactive

duty training during which the individual concerned was disabled or died

from

an injury incurred or aggravated in line of duty.? (Emphasis added.) Thus,

in

the case of inactive duty training, only if the individual suffered an

?injury? during such service can disability resulting from such service

provide a basis of eligibility for disability

compensation.

3. The question of what constitutes an ?injury? for purposes of section

101(24) must be considered in light of three previous General Counsel

opinions in which we analyzed the distinction between ?injury? and ?disease?

under that statute. One such opinion, VAOPGCPREC 86-90 (O.G.C. Prec. 86-90),

concerned whether a heart attack sustained following heavy exertion while on

inactive duty training was an injury within the meaning of section 101(24).

Medical evidence in that case indicated that the heart attack was the result

of coronary artery disease, which existed prior to the training period,

although the event may have been precipitated by physical exertion. On those

facts, we concluded that the claimant?s heart attack was not caused by an

injury, but rather was attributable to disease.

4. In VAOPGCPREC 86-90, we examined the medical cause of the heart attack.

We

noted the consensus among medical specialists that excessive effort and

strain cannot damage a normal heart and concluded that the heart attack was

the result of a disease process. We further concluded that Congress intended

to exclude ?nontraumatic incurrence or aggravation of a disease process, and

that manifestations of cardiovascular disease, such as heart attacks of

nontraumatic origin, fall within the excluded class of disability, i.e., do

not constitute injuries

under the statute.? In v. Brown, 5 Vet. App. 484, 487 (1993), aff?d,

26 F.3d 141 (Fed. Cir. 1994), the United States Court of Veterans Appeals

concluded that VAOPGCPREC 86-90 is consistent with the governing statutes

and

Congress? policy reflected in those statutes. We note that the focus of our

holding in VAOPGCPREC 86-90 was clearly on the non-traumatic nature of the

cause of the heart attack. We may assume that a heart attack caused by a

traumatic external event that is independent of a disease process, e.g., an

electric shock, may be considered an injury.

5. VAOPGC 6-86 (3-27-86) followed and relied upon what was formerly Op. G.C.

1-81 (subsequently reissued and redesignated as VAOPGCPREC 86-90). Although

VAOPGC 6-86 is not precedential, it illustrates how the opinion now

designated VAOPGCPREC 86- 90 has been applied. In VAOPGC 6-86, we determined

that a claimant who received an influenza vaccination by injection while on

inactive duty training and subsequently developed Guillain-Barre syndrome

did

not incur a disability resulting from an injury for purposes of section

101(24). Referencing what is now VAOPGCPREC 86-90, we reasoned that the term

?injury? denotes harm from external trauma, while the term ?disease? refers

to some type of internal infection or degenerative process. The opinion

cited

several sources for the proposition that the term ?trauma? commonly refers

to

the application of external force or violence. We further reasoned that,

under modern medical practice, the routine insertion of a hypodermic needle

into the body is not commonly considered to involve application of external

force or violence that is characteristic of injury. However, we recognized

that an injection could be considered to have caused a traumatic injury if

contact with the

needle caused lasting nerve or tissue damage.

6. Most recently, in VAOPGCPREC 8-2001, we held that an individual who

suffers from post-traumatic stress disorder (PTSD) as a result of a sexual

assault that occurred during inactive duty training may be considered

disabled by an ?injury? for purposes of section 101(2) and (24). This

conclusion was based upon the analysis of the preceding General Counsel

opinions indicating that ?injury? refers to the results of an external

trauma

rather than a degenerative process and the fact that, according to the

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of

the

American Psychiatric Association, at 427 (diagnostic criterion A), a

diagnosis of PTSD requires experiencing a traumatic event.

7. The concept exemplified by these VA General Counsel opinions is that

?injury? refers to the results of an external trauma, rather than a

degenerative process. While, as noted in VAOPGC 6-86, ?trauma? frequently is

defined with reference to external force or violence, the term may commonly

be considered to encompass injury to living tissue caused by an extrinsic

agent. Webster?s Ninth New Collegiate Dictionary 1256 (1990). In this

regard,

we believe that consideration of the nature of vaccines is helpful in

resolving the issue of whether introduction of a vaccine into the body may

constitute trauma for purposes of determining the nature of harm resulting

from the vaccine.

8. A vaccine is a suspension of attenuated or killed microorganisms or of

antigenic proteins derived from them. Dorland?s Illustrated Medical

Dictionary 1787 (28th ed. 1994). Vaccines artificially induce the immune

system to produce antibodies that will attack invading organisms and prevent

disease. National Institute of Allergy and Infectious Diseases, How Vaccines

Work, available at http://

www.niaid.nih.gov/daids/vaccine/how.htm. Although vaccines and mass

immunization programs have been extremely successful in protecting the

public

health against dangerous diseases, ?available data indicate that some

vaccines are associated with rare but serious adverse effects.? The Anthrax

Vaccine: Is It Safe? Does It Work? at 85. An adverse event following a

vaccination may be either local or systemic. Id. at

86. The duration of these events may be acute or chronic, and adverse health

effects may range from mild to severe. Id.

9. The foregoing discussion indicates that inoculation with a vaccine

involves the introduction of a foreign substance into the body and that,

while the substance is intended to and generally does have a beneficial

effect, adverse reactions, sometimes of a severe nature, may result.

Further,

based on the above discussion, we believe that the term ?injury? in section

101(24) may be interpreted to include harm not only from a violent encounter

but also from exposure to a foreign substance, such as a vaccine. We

recognize that in our non- precedential opinion VAOPGC 6-86 we concluded

that

harm resulting from an influenza vaccination would not be considered to have

resulted from an injury.

However, VAOPGC 6-86 focused on harm caused by the ?routine insertion of a

hypodermic needle into the body? and on the absence of external force or

violence, rather than on the introduction of an extrinsic agent to body

tissue. We believe the common understanding of the concept of ?trauma,?

which

is recognized as the cause of ?injury,? encompasses a broader definition

than

the one applied in VAOPGC 6-86 and that such broader definition includes

serious adverse effects on body tissue or systems resulting from

introduction

of a foreign substance.

Thus, an adverse reaction to a vaccination may be considered an ?injury? as

that term is used in 38 U.S.C. § 101(24).

10. This conclusion is consistent with VAOPGCPREC 86-90, in which the harm

suffered (a heart attack) did not result from an external force or

substance,

but rather from a pre-existing disease. This conclusion is also consistent

with VAOPGCPREC 8-2001, in which we recognized that a condition (in that

case

PTSD) that has characteristics of a disease may be considered to be the

result of an injury, where it resulted from an external assault.

HELD:

If evidence establishes that an individual suffers from a disabling

condition

as a result of administration of an anthrax vaccination during inactive duty

training, the individual may be considered disabled by an ?injury? incurred

during such training as the term is used in 38 U.S.C. § 101 (24), which

defines ?active military, naval, or air service? to include any period of

inactive duty training during which the individual was

disabled or died from an injury incurred or aggravated in line of duty.

Consequently, such an individual may be found to have incurred disability in

active military, naval, or air service for purposes of disability

compensation under 38 U.S.C. § 1110 or 1131.

Tim S. McClain

###### END #####

Signed:

Veterans Resources Network

Ray B Jr, Editor

Box 68

East Flat Rock, NC 28726

http://www.veteransresources.net

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_________________________________________________________________

Our Anthrax information web site: http://www.dallasnw.quik.com/cyberella/

DESTROY QUARANTINED VACCINE

http://www.PetitionOnline.com/mod_perl/signed.cgi?robi2662 & amp;amp;1

PETITION TO OVERTURN/REPEAL FERES DOCTRINE http://www.i-charity.net/ptn/80

To visit Dr. Meryl Nass's web site, go to: http://www.anthraxvaccine.org

Tom Colosimo's website: http://www.tomcolosimo.com

Also visit: http://www.MajorBates.com/ and http://www.enter.net/~jfsorg/

Anthrax Vaccine Network http://www.anthraxvaccine.net

Sgt. Larson's story:

http://www.house.gov/reform/hearings/healthcare/00.10.03/rugo.htm

http://www.house.gov/reform/hearings/healthcare/00.10.03/accountability.doc

http://www.jamesmadisonproject.org/importantlinks.html

http://www.anthraxadeadlyshotinthedark.com/index.html

Contact list owner: Gretchen Whitney at: anna_nim@...