Citation Nr: 1026080	
Decision Date: 07/14/10    Archive Date: 07/28/10

DOCKET NO.  07-16 648	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, 
Delaware


THE ISSUES

1.  Entitlement to service connection for seasonal allergies 
(allergic rhinitis). 
 
2.  Entitlement to a compensable evaluation for essential 
hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel




INTRODUCTION

The Veteran served on active duty from February 2001 to February 
2005.  He had foreign service in Kosovo and Iraq. 

This appeal comes before the Department of Veterans Affairs (VA) 
Board of Veterans Appeals (Board) from a March 2005 rating 
decision of the VA Regional Office (RO) in Wilmington, Delaware 
that granted service connection for essential hypertension, rated 
zero percent disabling from February 7, 2005, and denied service 
connection for seasonal allergies (currently characterized as 
allergic rhinitis).  The Veteran appeals for a higher initial 
disability rating for hypertension. 

Following review of the record, the issue of entitlement to a 
higher rating for essential hypertension is addressed in the 
REMAND portion of the decision below and is REMANDED to the RO 
via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  The Veteran was treated for symptoms that included nasal 
congestion and rhinitis diagnosed as seasonal allergies in 
service.  

2.  The Veteran has been treated for continuing allergic rhinitis 
since discharge from service.

3.  Allergic rhinitis was first manifest during active duty.


CONCLUSION OF LAW

Allergic rhinitis was incurred in service. 38 U.S.C.A. §§ 1110, 
1154(a), 5103, 5107 (West 2002 & Supp. 2009): 38 C.F.R. §§ 3.102, 
3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that he has worsening seasonal allergies that 
first began in service for which service connection should be 
granted.

Preliminary Considerations - VA's Duty to Assist the Veteran

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) has 
a duty to notify and assist claimants in substantiating a claim 
for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2009).  In this instance, the claim of 
entitlement to service connection for allergic rhinitis is 
granted.  The Court of Appeals for Veterans Claims (Court) has 
held that the VCAA is not applicable where further assistance 
would not aid the appellant in substantiating the claim. Wensch 
v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A 
(a) (2).  Therefore, in view of the Board's favorable decision 
and full grant of the benefit sought on appeal as to allergic 
rhinitis, further assistance is unnecessary to aid the appellant 
in substantiating the appeal.

Law and Regulations

Service connection may be granted for disability resulting from 
disease or injury incurred in or aggravated by active military 
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 
C.F.R. § 3.303 (2009).  Service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes that the disease 
was incurred in service. 38 C.F.R. § 3.303(d).

For the showing of chronic disease in service there is required a 
combination of manifestations sufficient to identify the disease 
entity, and sufficient observation to establish chronicity at the 
time, as distinguished from merely isolated findings or a 
diagnosis including the word "chronic."  Continuity of 
symptomatology is required where the condition noted during 
service is not, in fact, shown to be chronic or where the 
diagnosis of chronicity may legitimately be questioned.  When the 
fact of chronicity in service is not adequately supported, then a 
showing of continuity after discharge is required to support the 
claim. 38 C.F.R. § 3.303 (2009).

When a veteran seeks service connection for a disability, due 
consideration shall be given to the supporting evidence in light 
of the places, types, and circumstances of service, as evidenced 
by service records, the official history of each organization in 
which he served, his military records, and all pertinent medical 
and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. 
§ 3.303(a).

Factual Background

The Veteran's service treatment records reflect that on 
examination in December 2000 for service entrance, the Veteran 
denied ear, nose or throat trouble, hay fever and all other 
respiratory symptoms and conditions.  The nose and sinuses were 
evaluated as normal.  In March 2001, he was seen at the Fort Sill 
Medical Clinic with complaints that included sore throat and an 
inability to breathe.  He was prescribed Deconomine [an 
antihistamine and decongestant] for allergies.  It was noted that 
"pt states clinical dx as civilian."  Health records dated in 
January, May and June 2003 indicate that he had been prescribed 
Cetirizine [an antihistamine] which had last been filled June 
13th and June 22nd 2002.  In September 2003, the appellant was 
seen for complaints of dyspnea, sneezing, and burning eyes.  He 
denied any history of seasonal allergy symptoms and stated that 
he had always had good health.  Physical examination disclosed 
findings that included erythema, corzya, boggy turbinates, 
bilaterally.  An assessment of seasonal allergies was rendered 
for which Zyrtec was prescribed.  It was noted that a previous 
prescription of Allegra had failed.  The Veteran was advised to 
remain hydrated, maintain a diary of allergic responses and 
practice avoidance as a mainstay of treatment.  

A Post-Deployment Health Assessment dated in September 2004 
indicated that the Veteran served in Iraq and experienced such 
symptoms as chronic cough, and runny nose.  He noted that he 
lived in a power plant with four smoke stacks for almost a year.  
On an Optometry Exam Form dated in September 2004, the Veteran 
denied problems with his nose, sinus, throat, allergies and hay 
fever.  A service discharge examination report is not of record.  
A claim for conditions that included seasonal allergies was 
received in December 2004, prior to his discharge from service.  

A VA General Medical Examination was conducted in January 2005.  
It was noted that the claims folder was reviewed.  The Veteran's 
current complaints were reported to include seasonal allergies 
with symptoms of nosebleeds and nasal congestion.  He said he 
believed that cats and pollen exacerbated his symptoms.  He 
denied using medication for his symptoms.  On physical 
examination, the sinuses were nontender.  The oropharynx was 
clear.  Following examination, a pertinent assessment of 
intermittent tenderness, unknown etiology, most likely related to 
seasonal allergies, was rendered.  

VA outpatient clinical records dating from 2005 reflect that the 
Veteran was seen in May of that year with chief complaints of 
rhinitis, sinus congestion, and burning eyes.  It was noted that 
he had done well on Zyrtec and Flonase.  An assessment of 
allergic rhinitis was rendered.  A May 2005 active medication 
list included Flunisolide for nasal allergy and Loratadine 
(Claritin) for nasal allergy or rhinitis.  In June 2005, it was 
noted that allergic rhinitis was stable on Claritin and a steroid 
nasal spray.  

The Veteran underwent pulmonary consultation in January 2006 and 
reported a history of service in Kosovo for seven months, 
followed by one year in Iraq where he was exposed to many 
chemicals, fumes and gasoline.  It was also noted that he had 
smoked up to two packs of cigarettes in the past, but had quit 
three months before and was on nicotine patches.  In May 2006, it 
was recorded that allergic rhinitis was not under control with 
Claritin and that Flunisolide nasal spray would be prescribed.  
VA outpatient records continued to note allergic rhinitis on the 
Veteran's problem list throughout the course of treatment for 
various complaints and disorders.



Legal Analysis

The Veteran's service treatment records disclose that he was 
treated for symptoms in service diagnosed as seasonal allergies 
for which he was prescribed a number of medications.  The record 
reflects that although he denied having or ever having had nasal 
or respiratory symptoms on service entrance examination in 
December 2005, when seen for treatment of allergy symptoms in 
February 2001, within the month of entry onto active duty, a 
notation at that time indicated that he might have had an allergy 
problem prior to service.  In view of such, the Board finds that 
the provisions of 38 U.S.C.A. § 1111 (West 2002 & Supp. 2009) are 
called into consideration.  This law provides that every veteran 
shall be taken to have been in sound condition when examined, 
accepted, and enrolled for service, except as to defects, 
infirmities, or disorders noted at the time of the examination, 
acceptance, and enrollment, or where clear and unmistakable 
evidence demonstrates that the injury or disease existed before 
acceptance and enrollment and was not aggravated by such service. 
Id. 

The Board observes that upon being treated for allergy symptoms 
in September 2003, the appellant again denied that he had ever 
had a history of seasonal allergy symptoms.  Therefore, while 
there appears to be some contradiction in his statements in this 
regard, the Board finds that his assertions in service overall 
tend to show no pre-service history of allergy.  Accordingly, the 
Veteran is presumed to have been in sound condition upon entrance 
into active duty service with respect to allergy symptoms.

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 (2009).

Here, the Board is presented with an inadequate VA examination 
report in that little findings and discussion relative to 
seasonal allergy were reported, and no opinion as to whether the 
disorder was related to service was furnished.  However, the 
service treatment record indicates that the Veteran received 
continuing treatment and medication trials for seasonal allergies 
and post-service VA outpatient records dating from 2005 also 
reflect continuing treatment for symptoms including sinus 
congestion and rhinitis, now diagnosed as allergic rhinitis, for 
which the Veteran continues to take medication, including a nasal 
steroid.  He has indicated that the disorder has continued to 
bother him since service and is worsening.  Thus, a continuity of 
symptomatology is established. See 38 C.F.R. § 3.303.  
Accordingly, any benefit of the doubt is resolved in favor of the 
Veteran by finding that service connection for allergic rhinitis 
is warranted.


ORDER

Service connection for allergic rhinitis is granted, subject to 
the laws and regulations governing the award of monetary 
benefits.


REMAND

The Veteran asserts that the symptoms associated with essential 
hypertension are more severely disabling than reflected by the 
current noncompensable disability rating and warrant a higher 
rating.  Review of the record discloses that the Veteran was 
scheduled for a VA examination for hypertension in April 2006 and 
failed to report.  It was documented that he did not cancel the 
appointment, made no attempt to reschedule it and that the letter 
was not returned.  No subsequent correspondence was received from 
the Veteran until May 2007.  At that time, he stated that he was 
on two medications for hypertension and that his readings were 
still high.  

Although there is no requirement for the Veteran to be 
rescheduled for an examination that he failed to report to 
without showing good cause, the record reflects that there is an 
increase in severity of the newly service-connected hypertension 
which may rise to the level of allowing a higher rating to be 
assigned.  In view of such, the Board is of the opinion that the 
Veteran must be afforded another opportunity to report for VA 
examination.  The Veteran is hereby notified that it is his 
responsibility to report for scheduled examinations and to 
cooperate in the development of the case, and that the 
consequences of failure to report for a VA examination without 
good cause may include denial of the claim.  See 38 C.F.R. 
§§ 3.158 and 3.655.  

Additionally, VA outpatient clinical records reflect that the 
Veteran receives treatment, including medication management, for 
hypertension.  The record reflects, however, that the most recent 
records date through May 7, 2007.  As the record indicates the 
existence of additional VA records, they must be retrieved and 
associated with the other evidence on file. See Bell v. 
Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. 
App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995).  Such 
records are crucial in the evaluating the service-connected 
hypertension relative to the pertinent rating criteria.  
Therefore, VA records dating from May 8, 2007 should be requested 
and associated with the claims folder.

Accordingly, the case is REMANDED for the following actions:

1.  VA outpatient records dating from May 
8, 2007 should be requested and associated 
with the claims folder.  

2.  Following receipt of the above, 
schedule the Veteran for a VA examination 
to determine the status of his service-
connected hypertension.  The claims file 
must be made available to and be reviewed 
by the examiner in conjunction with the 
examination.  The examiner must indicate 
whether hypertension is manifest by 
diastolic pressures of predominantly 100 
or more, or systolic pressure 
predominantly 160 or more.  The examiner 
should also provide an opinion as to 
whether there is a history of diastolic 
pressure predominantly 100 or requiring 
continuous medication for control.  

3.  The Veteran must be given adequate 
notice of the examination, to include 
advising him of the consequences of 
failure to report. See 38 C.F.R. § 3.655 
(2009).

4.  After taking any further development 
deemed appropriate, re-adjudicate the 
issue on appeal.  If the benefit is not 
granted, the Veteran and his 
representative should be provided a 
supplemental statement of the case before 
the case is returned to the Board.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded. 
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner. See 
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



______________________________________________
Kristi Barlow
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs