Citation Nr: 0814999 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 99-00 142A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for allergic rhinitis and/or sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from November 1981 to February 1998. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision that, in part, denied service connection for allergic rhinitis, claimed as sinus condition. The veteran timely appealed. In October 2003, August 2005, November 2006, and July 2007, the Board remanded the matter for additional development. Consistent with the veteran's assertions and the record, the Board has re-characterized the appeal as encompassing the issue on the title page. FINDINGS OF FACT 1. The veteran's pre-existing allergic rhinitis and/or sinusitis increased in severity during service. 2. It is not shown by clear and unmistakable evidence that the increase in severity during service, of the veteran's allergic rhinitis and/or sinusitis, was due to the natural progress of the disease. CONCLUSIONS OF LAW 1. The presumption of aggravation is not rebutted by clear and unmistakable evidence. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). 2. The veteran's allergic rhinitis and/or sinusitis were aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1132, 1137, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the veteran in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating her claim. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran contends that her current allergic rhinitis and/or sinusitis are the result of aggravation of a preexisting disease or disability in service. Every person employed in the active military, naval, or air service 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. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Here, sinusitis was noted in the report of medical history completed by the veteran in July 1980, before her acceptance into active service. Also, during a June 2004 VA examination, the veteran reported having sinus trouble since her teen years, with episodic bouts of increased nasal drainage, and facial and head pain. All subsequent examiners who have reviewed the veteran's claims file have found that her allergic rhinitis and/or sinusitis pre-existed military service. Under these circumstances, the presumption of soundness is not for application. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2007). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b); see also VAOPGCPREC 3-03 (July 16, 2003). A review of the claims file reflects that there are no treatment records for allergic rhinitis and/or sinusitis prior to the veteran's military service. Service medical records show treatment for allergic rhinitis and/or sinusitis on various occasions in 1982, 1991, 1993, and 1996. A report of medical assessment at separation in January 1998 noted recurrent sinusitis. During a June 2004 VA examination, the veteran reported that she had several sinus infections over the years, requiring antibiotic therapy; and that the severity of her symptoms had accelerated during the 1980's and 1990's. The report of that examination included diagnoses of allergic rhinitis and probable chronic sinusitis with acute sinus infections. Following the Board's August 2005, November 2006, and July 2007 remands, the veteran underwent additional VA examinations for purposes of determining whether a worsening of her allergic rhinitis and/or sinusitis occurred during active service or during the first post-service year. A May 2006 examiner opined that it was less likely as not (less than 50/50 probability that the veteran's allergic rhinitis and/or sinusitis were permanently aggravated by military service. No rationale was provided. In November 2007, the same examiner who conducted the May 2006 examination opined that it was quite possible that the veteran's symptoms did, in fact, permanently increase while in service, although the examiner noted a lack of medical treatment records prior to the veteran's military service. The examiner based the opinion upon records showing that the veteran had chronic, regular sinus congestion and allergic rhinitis for the duration of her active duty, which required significant and repeated care, often unsuccessfully. The opinion also was a product of an extensive review of the entire claims file. In fact, the examiner commented that the veteran's claims file had not been available previously to its full extent during the May 2006 examination. Here, the November 2007 opinion was based on an accurate reading of the record and, therefore, is more probative. Hence, the evidence of record demonstrates an increase in disability during service. Once a determination is made that there was an increase in disability during service or the presumptive period, the presumption of aggravation for a grant of service connection attaches to the claim. Atkins v. Derwinski, 1 Vet. App. 228 (1991). However, the presumption of aggravation may be rebutted by clear and unmistakable evidence, including evidence that the increase was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 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 show by clear and unmistakable evidence that the increase in severity of the veteran's allergic rhinitis and/or sinusitis during service was due to the natural progress of the disease. Here, the only possible evidence that may rebut the presumption of aggravation is a comment by the May 2006 examiner, suspecting that the veteran's allergic rhinitis and/or sinusitis would have taken a similar clinical course regardless of military service. No further clarification of this suspicion was provided in November 2007, following an extensive review of the claims file. While the examiner's suspicion may suggest natural progression of the disease-e.g., "regardless of military service,"-there is no clear and unmistakable evidence that the increase in severity during active duty was due solely to the natural progression of the disease. Maxson v. West, 12 Vet. App. 453 (1999). Accordingly, the evidence of record is insufficient to rebut the presumption of aggravation. After consideration of all the evidence, the Board finds that the medical and other evidence does not clearly and unmistakably indicate that the increase in severity during service, of the veteran's allergic rhinitis and/or sinusitis, was due to the natural progress of the disease. Hence, the evidence favors the claim for service connection for allergic rhinitis and/or sinusitis, and the claim is granted. ORDER Service connection for allergic rhinitis and/or sinusitis is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs