Citation Nr: 0008428 Decision Date: 03/29/00 Archive Date: 04/04/00 DOCKET NO. 98-17 637A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to service connection for allergic rhinitis/sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to March 1994, including a tour in the Southwest Asia Theater during the Persian Gulf War from August 16, 1990, to April 4, 1991. This matter comes to the Board of Veterans' Appeals (Board) from RO rating decisions in March 1996 and in November 1996 that denied service connection for sinus infection due to an undiagnosed illness of the Persian Gulf War. The veteran submitted notices of disagreement in December 1996 and in September 1997, and the RO issued a statement of the case in October 1998. The veteran submitted a substantive appeal in November 1998. FINDING OF FACT Allergic rhinitis/sinusitis had its onset in service. CONCLUSION OF LAW Allergic rhinitis/sinusitis was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 1991); 38 C.F.R. § 3.306 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background The veteran had more than 25 years of active service from January 1969 to March 1994, including service in the Southwest Asia Theater. Service department records show that she participated in Operation Desert Shield/Storm, and was awarded the following service medals, among others: the Combat Action Ribbon, the Southwest Asia Service Medal, and the Kuwait Liberation Medal. Service medical records of the veteran's treatment in September 1972 show that the veteran complained of cold and congestion, and that the examiner noted tenderness over the left frontal sinus. X-rays showed haziness of the left frontal sinus. Service medical records of the veteran's treatment in November 1974 note the examiner's assessment of sinobronchial syndrome, versus viral upper respiratory infection. Service medical records of the veteran's treatment in April and in June 1985 note nasal congestion and postnasal drip. On a "Report of Medical History" completed by the veteran for reenlistment in June 1987, the veteran reported sinusitis. Service medical records of the veteran's treatment in May 1989 show sinus congestion. The veteran complained of left frontal sinus tenderness. The examiner noted minimal left maxillary mucosal sinus congestion, as maybe seen in sinusitis. Service medical records at the time of the veteran's examination for separation from service in February 1993 report normal sinuses. VA outpatient records show that the veteran was treated shortly after service-within thirteen months of discharge- in April 1995. The veteran reported that she came in for a Persian Gulf War examination. The veteran denied symptoms of Persian Gulf War syndrome, but she wanted to be part of the registry. The veteran complained of allergic rhinitis symptoms that she had been experiencing for years during weather changes. The veteran also reported that she had been taking over-the-counter medications without relief. The examiner noted tenderness of the maxillary sinus, nasal turbinates hypertrophied with watery catarrh, and clear posterior pharyngeal drainage. The assessment was allergic rhinitis. Records show that the veteran returned for treatment within one week due to complaints of persistent allergic rhinitis with left-sided headaches. The assessment was allergic rhinitis with upper respiratory infection. Records show that the veteran underwent a VA examination in May 1995. The veteran stated that she had always had sinus problems. She also reported that her sinus problems were kept under control in the military by medications. The veteran estimated having episodes of sinus problems about once a year, but that this year she had not been able to control her sinus problems. She reported that she would get up in the morning and would feel her sinuses draining, and headaches would start about 9 a.m. The veteran reported being real sick for two weeks, and missing several days of work. The veteran reported symptoms of rhinorrhea and watery eyes; no allergy tests were done. The veteran also reported taking over-the-counter medications for sinusitis. Records show that the examiner did not have access to the veteran's claims folder. Upon examination, the veteran's oropharynx and nasal pharynx were unremarkable. The veteran appeared to be a little congested, but there was no rhinorrhea. The sinuses transilluminated nicely, and were not tender to palpation. It was a negative examination. X-rays of the paranasal sinuses were normal; an incidental note was made of a metallic wire artifact which appeared in some films. The veteran was diagnosed with subjective history of chronic sinusitis, but no clinical or radiographic findings. The veteran underwent a Persian Gulf War examination in October 1995. Records show that the veteran returned from the Persian Gulf in April 1991. The veteran reported having had one big sinus episode last year. The examiner noted her nares were patent. Records show that the veteran underwent VA examination in April 1996. She reported chronic sinus problems, but was not examined for these. Other post-service medical records in the claims folder show a continuity of treatment for allergic rhinitis from 1996 to 1998. X-rays of the veteran's sinuses taken in June 1997 and March 1998 revealed no definite sinus disease. On VA examination in March 1998 the veteran gave a long history of allergic rhinitis/sinusitis beginning in service and aggravated in Southwest Asia by oil fires. Since then, she reported, she had had almost constant nasal congestion, pain, stuffiness, coryza, and post-nasal drip. She had been treated frequently in the last year, even with antibiotics, but symptoms would recur shortly after discontinuation of treatment. The diagnosis was allergic rhinitis/sinusitis with frequent sinus infections, x-rays normal. Statements of the veteran in the claims folder are to the effect that she was assigned to a combat regiment in Operation Desert Storm, and that her unit constantly moved from one location to another around oil fires. The veteran also stated that she did not begin to have serious sinus problems until returning from Operation Desert Storm, and that her worst attack was in April 1995. B. Legal Analysis The veteran's claim is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist her. 38 U.S.C.A. § 5107(a) (West 1991). In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Board notes that veterans are presumed to have entered service in sound condition except for defects, infirmities, or disorders noted at entrance. 38 U.S.C.A. §§ 1111, 1137 (West 1991); Bagby v. Derwinski, 1 Vet. App. 225 (1991). However, the presumption of soundness may be rebutted by clear and unmistakable evidence that an injury or disease existed prior to service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (1999). The burden of proof is on VA to rebut the presumption. Kinnaman v. Principi, 4 Vet. App. 20 (1993). In this case, VA would have to demonstrate that the veteran's sinus problems or allergic rhinitis clearly and unmistakably pre-existed service based on all relevant evidence of record. Crowe v. Brown, 7 Vet. App. 238 (1994). In this case, the evidence of record reflects that the veteran was first treated for sinus problems in service in September 1972. While the veteran did report in 1995 that she had always had sinus problems and that her sinus problems were kept under control by medications during military service, there was no reference made by the veteran to any pre-service examination or diagnosis by a competent medical professional of any sinus problems or of allergic rhinitis. Neither service medical records nor post-service medical records reflect any history of sinus problems or of allergic rhinitis prior to the veteran's entering military service. A determination of the existence of a pre-existing condition must be supported by contemporaneous evidence or recorded history in the record, which provide a sufficient factual predicate to support a medical opinion. Miller v. West, 11 Vet. App. 345, 348 (1998). Here, there is no discernible evidence of record in support of a finding that the veteran's sinus problems or allergic rhinitis pre-existed military service. Accordingly, the Board finds that the evidence does not clearly and unmistakably show that the veteran's sinus problems or allergic rhinitis existed prior to entry into service. 38 C.F.R. § 3.304(b)(2); Doran v. Brown, 6 Vet. App. 283, 286 (1994); see also Gahman v. West, 13 Vet. App. 148 (1999). Thus, the presumption of soundness is not rebutted, and the Board presumes the veteran to have been in sound condition at the time of entry in January 1969. Parker v. Derwinski, 1 Vet. App. 522 (1991). Statements of the veteran in the claims folder are to the effect that her sinus problems began in service and worsened during and after her assignment in Operation Desert Storm to locations near oil fires. Service department records show that the veteran was awarded the Combat Action Ribbon, the Southwest Asia Service Medal, and the Kuwait Liberation Medal, among others. The Combat Action Ribbon is an award that denotes the veteran's individual participation in combat. Because the veteran is considered a combat veteran, her statements concerning a worsening of her sinus problems during and after Operation Desert Storm are accepted as correct in the absence of evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 1991). VA compensation shall be paid for certain disabilities due to undiagnosed illnesses to veterans who exhibit objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms listed in 38 C.F.R. § 3.317(b), provided that such disability became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2001. For purposes of this regulation, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) fatigue (2) signs or symptoms involving skin (3) headache (4) muscle pain (5) joint pain (6) neurologic signs or symptoms (7) neuropsychological signs or symptoms (8) signs or symptoms involving the respiratory system (upper and lower) (9) sleep disturbances (10) gastrointestinal signs or symptoms (11) cardiovascular signs or symptoms (12) abnormal weight loss (13) menstrual disorders. 38 U.S.C.A. §§ 1113, 1117, 1118 (West 1991 & Supp. 1999); 38 C.F.R. § 3.317 (1999). The Board notes, however, that the provisions of 38 U.S.C.A. § 1117 regarding the presumption of service connection for various undiagnosed illnesses are inapplicable to the veteran's claim, as the evidence indicates that the veteran has a diagnosis of allergic rhinitis/sinusitis; nor are these provisions applicable to service connection based on aggravation of diseases. Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (1999). As noted above, there is no competent medical evidence that the veteran's sinus problems or allergic rhinitis pre-existed military service. The veteran was first treated for sinus problems in 1972 while in service, and then again in 1974, 1985, and 1989. Post-service medical records show evidence of treatment for allergic rhinitis shortly after service- within thirteen months of discharge, and fairly continuous treatment for allergic rhinitis/sinusitis from 1996 to 1998. Records in the claims folder reflect a diagnosis of allergic rhinitis/sinusitis. The determination of service incurrence must, in this case, be on "the whole evidentiary showing." There is documentation in the service medical records of several episodes of the symptoms now identified as allergic rhinitis/sinusitis. The veteran's statements as to continuing symptoms are credible. Hence, the Board finds that the evidence favors her claim for service connection for allergic rhinitis/sinusitis. ORDER Service connection for allergic rhinitis/sinusitis is granted. J. E. DAY Member, Board of Veterans' Appeals - 8 - - 1 -