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Anthrax Vaccines Considered "injury"


Guest Morgan

Question

This CVAC precedent is about anthrax vaccination, but would this apply to all vaccines that cause disabling conditions?

I inserted this out of order to show the "held" info first, but the full case follows:

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.

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)

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To: 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,[1] 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 Brooks 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). [2] 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

[1] The Department of Defense (DoD) mandated anthrax vaccinations for all service members and DoD civilian employees assigned or deployed to high-threat areas. Memorandum of Under Secretary of Defense, Change of Anthrax Vaccine Immunization Program (AVIP) Operational Procedure, March 30, 1999. The Anthrax Vaccine Adsorbed (AVA) involves 6 subcutaneous injections over an 18-month immunization schedule and annual booster doses. Institute of Medicine, The Anthrax Vaccine: Is It Safe? Does It Work? at 5 (2002).

[2] The VA General Counsel opinion originally designated as Op. G.C. 1-81 was published on May 19, 1981. This opinion was reissued as a precedent opinion on July 18, 1990, and redesignated as VAOPGCPREC 86-90 (O.G.C. Prec. 86-90).

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Thank you Morgan.

I was active duty when I had a reaction to a vaccine. NTC Sandiago_oct 1967.

Allan,

This is a precedential opinion and "injury" certainly would be applicable to active duty -- point # 9 is important. Notice that the non-precedential opinion was different, but this case changed it. Hope this helps.

Carrie

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).

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Guest allanopie

>Notice that the non-presidential opinion was different, but this case changed it.

Hello Carrie,

The opinion of the law can change, but the "business practice" of the DVA, never changes.

No oversight means, they do,"exactly" as they choose. The DVA is completely lawless.The sicker the Vet, the more the VA will take advantage of it.

"IF", the DVA chose to consider a Vets claim for a reaction to a vaccine. My guess is, "UNLESS" you served in the your SO's unit, who served with the adjudication officer processing your claim, during a firefight, during a time of war, in country & the General had the same reaction, while standing next to you and you both fell to the floor instantly, in front of 50 witnesses who provided (notarized statements), and there was a toxicologist friend of the Generals standing right there when it happened( and he provided an expert opinion that was, "pre-authorized) & Rummy pre-approved to have it entered your health records, & they didn't burn in the fire at the place your records weren't kept at & you knew the secret handshake, it won't go anywhere.........sorry I almost forgot the important part.

You also need to survive the havoc the vaccine has caused on your body, brain & life and the decades of deliberate mental anguish and lack of health care the DVA provides us, as "caring for those "stupid enough" to volunteer.

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As far as I know, the returning troops haven't been ordered to hide their identity due to unsafe conditions in the US. But the longer we give our children up for a lie, things will change.

I don't care what Jesse Ventura looks like. If this Marine runs, he gets my vote.

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Allan,

I do understand your frustration. And of course, you are right. It's just a shame veterans are put through this. I know the business practice of the VA is a vast mountain to move, and it does seem to be lawless, so it's easy to get discouraged and do nothing. Still, you should file a claim if you have continuing problems from the vaccines. If I can help, let me know.

Berta,

It is certainly outrageous what you have gone through with your claims--and this current fiasco is off the scale for craziness! First, how crazy it is to call for an exam for a deceased person! That just shows they did not read your file as the law says they must to consider all of your issues. More of that lawlessness Allan mentioned.

What really gets me about the case I posted is the BVA statements totally defy and ignore the CFR definition (and intention for due process) of competent medical evidence. Despite legal provisions for veterans, throughout the claims and appeal process, the VA and BVA loudly announce in writing that they violate the law any time they choose. Why, why, why is there no penalty against them when they do? A veteran would go to jail and/or pay a big fine if he or she violated federal law concerning a claim for benefits.

According to §3.159, competent medical evidence means "evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." The VA cannot legally refute or ignore a physician's opinion and diagnosis without pointing to another piece of competent medical evidence and explaining why one is more persuasive than the other.

The supposed non-adversarial adjudication, which of course is the argument for not allowing vets to have legal representation until they have exhausted all appeals, is a joke. Even C&P exams (good and necessary in some cases) are many times just fishing expeditions for something to allow the VA to overrule favorable competent medical evidence. Too often, the VA covers up the harsh adversarial adjudication under the gentle label of "duty to assist." (For this reason, I think more vets should decline a VA exam if they have competent medical evidence--adequate for rating purposes--that supports their cases. Many think declining a VA exam is not allowed or may be harmful to a claim, but as far as I can find out, declining an exam is permissable under certain conditions. Of course, the vets would really have to know their cases before doing that.)

All of this is just my opinion and observation, and, I'm sure, no great revelation for anyone here. And some probably disagree with me, but we all agree the system is breaking the backs of veterans and their families. And the delays are unconscionable. There just has to be something different we can do to stop this injustice. Brilliant people are here on Hadit and some of them have probably already thought of things we can do. How can we incite an uprising of veterans to take a different approach in righting these terrible wrongs? Do I have the answer? No. I'll have to leave that to the brilliant ones. B) But I keep thinking the definition of insanity is "doing the same thing and expecting a different result." It's the cursing the darkness that gets us nowhere. And when only a few veterans stand up, it's as trying to put out a forest fire with a squirt gun.

I know the theory is veterans have help from service organizations, and some of them do a great job...sometimes, but overall, the feedback is veterans are not satisfied with them. So something is fatally wrong. We must find out how to hold the VA's feet to the fire legally. As you have said, they have guns, but veterans do too.

I hold all veterans and their families in high regard and I want to see better results for every single veteran. So when you step out there to stop this craziness, let me know if I can help.

Carrie

Edited by Morgan (see edit history)
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Guest allanopie

>Still, you should file a claim if you have continuing problems from the vaccines.

I thought I did that at the BVA traveling board back in 2001 or 2002 in Seattle.

I submited a sworn statement about the vaccination reaction & possible exposures to bio-weapons, my wife & daughter were present. I asked for service connection.

My VVA SO, completely advized against it & asked at the hearing that the benefit of the doubt should be granted. He knew absulutly nothing about me or my claim after being my rep for yrs.

Never heard another word about it & don't expect to.

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>Never heard another word about it & don't expect to.

Is there a chance this claim is still open? You should have received notice of the BVA's decision. Is there any indication that any of your current problems could be side effects of the vaccine? I know you do a lot of research yourself, but I can help you research this, just let me know. Feel free to email me privately or on this board and I'll be glad to help.

Carrie

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