Citation Nr: 1201790 Decision Date: 01/18/12 Archive Date: 01/30/12 DOCKET NO. 08-39 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for allergic reaction/allergy to aspirin, claimed as manifested by itchy and swollen lips and urticaria. 2. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from November 1975 to November 1979 and in the Air National Guard from March 1998 to March 2006. Prior to this second period of active duty, the Veteran also had over 20 years of active service and over two years of inactive service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied a claim for service connection for recurring lip swelling and granted service connection for hypertension with a noncompensable evaluation effective April 1, 2006. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In an April 2008 statement in support of claim, the Veteran noted that he had chronic urticaria, in addition to lip swelling, as a result of taking aspirin. In his December 2008 VA Form 9, the Veteran clarified that he was not necessarily claiming entitlement to service connection for lip swelling, but for the allergy to aspirin that developed as a result of needing to take that medication for in-service atrial fibrillation. In light of the foregoing, the Veteran's claim for "reoccurring lip swelling" has been recharacterized as shown on the title page. The Board notes that the issue of entitlement to an initial compensable rating for hypertension was not included in the Veteran's December 2008 VA Form 9, which specifically limited his appeal to the issue of entitlement to service connection listed above. However, the RO included the issue of an initial compensable rating for hypertension in a September 2010 supplemental statement of the case (SSOC) and in a November 2010 VA Form 8. Inasmuch as the RO took actions to indicate to the Veteran that the issue was on appeal, the requirement that there be a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, the Board will proceed accordingly. Service connection for "cardiac condition aortic insufficiency, tricuspid insufficiency, atrial fibrillation, medication required," was denied in the October 2007 rating decision that is the subject of this appeal. Subsequent to that decision, the Veteran raised the issue of atrial fibrillation in conjunction with his notice of disagreement with the denial of service connection for reoccurring lip swelling. In a November 2007 letter, the RO requested that he clarify whether he disagreed with the denial of "cardiac condition aortic insufficiency, tricuspid insufficiency, atrial fibrillation, medication required." No response was received and the issue was not included in the November 2008 statement of the case (SOC) or December 2008 SSOC. The Veteran again mentioned atrial fibrillation in his December 2008 VA Form 9 and the RO sent a letter to him that same month indicating his claim for atrial fibrillation had been received. In a March 2009 deferred rating decision, however, the RO incorrectly indicated that the issue of atrial fibrillation (cardiac condition) was on appeal. In a March 2009 letter to the Veteran, the RO noted that the December 2008 letter included atrial fibrillation but that the issue was on appeal and that a decision would be rendered by the Appeals team. The Board does not have jurisdiction over this issue and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The issue of entitlement to an initial compensable rating for 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. There is no evidence that the Veteran currently has been diagnosed with an allergic reaction and/or allergy to aspirin, or urticaria, or that he has been treated for itchy and/or swollen lips. 2. An allergy, to include an allergic reaction to a drug, is considered a developmental or congenital disorder and not a disability for which service connection may be granted. CONCLUSION OF LAW The criteria for service connection for allergic reaction/allergy to aspirin, claimed as manifested by itchy and swollen lips and urticaria, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks entitlement to service connection for an allergic reaction or allergy to aspirin, which he claims is manifested by itchy and swollen lips and urticaria. He specifically alleges that he developed an allergy to aspirin when he was given the medication as a blood thinner to treat atrial fibrillation in service. This allergic reaction to aspirin manifested itself in the form of swollen and itchy lips and chronic urticaria. The Veteran contends that his allergy to aspirin persists. See VA Form 21-526 received April 2006; April 2007 statement in support of claim; April 2008 VA Form 21-4138; December 2008 VA Form 9. Service treatment records from his first period of active service are devoid of reference to complaint of, or treatment for, any allergic reactions manifested by itchy and swollen lips and/or urticaria. Records from his second period of active service document that on October 15, 2004, the Veteran was seen with complaint of occasional lip swelling and itching/hives, which he was concerned may be an allergic reaction. He further noted that three months prior, he had had an episode after eating at The Olive Garden with four to five subsequent episodes since then. He was assessed in pertinent part with urticaria/angioedema. See patient encounter form. The Veteran was seen at the allergy clinic four days later with the same complaints; he was assessed with chronic urticaria/recurrent urticaria/angioedema. It was recommended that nonsteriodal anti-inflammatory drug use (NSAID) may be contributing but as the Veteran was on aspirin (ASA) for AFIB, the examiner was reluctant to remove it (for now). The Veteran was advised to fast from meats (sausage) and to take Zyrtec. See health records. On follow-up at the department of allergy/immunology on November 8, 2004, the Veteran denied any new or changed symptoms and physical examination of his skin revealed no rashes, hives or edema. The Veteran was assessed with urticaria/angioedema, was taken off Zyrtec, and had open follow-up, to include may needing to change aspirin. The remaining service treatment records are devoid of reference to complaint of, or treatment for, any similar complaints, although the Veteran did note in December 2005 that he was concerned about lip swelling and indicated that he suspected aspirin was causing it. The health care provider appears to have noted that the Veteran had had swelling of the upper and bottom lip but was without recurrence since stopping aspirin. See report of medical assessment. No discharge/retirement examination is of record. The post-service medical evidence of record is devoid of reference to complaint of, or treatment for, any allergic reaction or allergy to aspirin, claimed as manifested by itchy and swollen lips and urticaria. The Veteran underwent a VA examination in August 2006, at which time he reported in pertinent part that he had had the condition of reoccurring lip swelling since 2005 and that his current symptoms were swelling of the lips as an allergic reaction to aspirin, which was prescribed as an anticoagulant. The Veteran denied receiving any treatment for this condition and the examiner indicated there was no functional impairment resulting from this condition. On physical examination, the Veteran's skin was clear of rashes and lesions. The examiner noted that for the claimed condition of reoccurring lip swelling, there was no diagnosis because there was no pathology to render a diagnosis. The evidence of record does not support the claim for service connection for allergic reaction/allergy to aspirin, claimed as manifested by itchy and swollen lips and urticaria. This is so because the application of 38 C.F.R. § 3.303 has an explicit condition that the Veteran must have a current disability. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires evidence of a relationship between a current disability and events in service or an injury or disease incurred therein). While it is true that the Veteran was diagnosed with urticaria and angioedema during service after being treated for his complaints related to swollen and itchy lips and hives, there is no evidence that the Veteran currently has either of these conditions, that he has been diagnosed with an allergic reaction and/or allergy to aspirin, or that he has been treated for itchy and/or swollen lips. In fact, the August 2006 VA examiner specifically noted that no diagnosis could be rendered in relation to the claimed condition of reoccurring lip swelling because there was no pathology to render such a diagnosis. There is also no evidence to support a finding that the Veteran had any symptomatology at the time he filed his claim in April 2006, or at any time during the pendency of his claim, such that the current disability requirement has been satisfied. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes at this juncture that at the time of the August 2006 VA examination, the Veteran reported that he had had the condition of reoccurring lip swelling since 2005 and that his current symptoms were swelling of the lips as an allergic reaction to aspirin. The Board does not find these assertions to be credible. First, although service treatment records do document complaints of lip swelling in October and November 2005, there are no other findings of record, to include in 2005. Even when the Veteran noted in a December 2005 report of medical assessment that he was concerned about lip swelling and indicated that he suspected aspirin was causing it, there was no indication that the Veteran currently had any lips swelling, only that the Veteran had had swelling of the upper and bottom lip but was without recurrence since stopping aspirin. Secondly, there were no such current symptoms noted at the time of the VA examination. And in addition to the foregoing, in an April 2008 VA Form 21-4138, the Veteran candidly acknowledged that since being taken off aspirin, he has not had any problems and that the chronic urticaria cleared up after stopping the aspirin therapy. The Board also notes that the Veteran contends that his allergy to aspirin has persisted since service. See April 2008 VA Form 21-4138. While this may be true, an allergy, to include an allergic reaction to a drug, is a reaction that develops from exposure to the allergen and represents a developmental or congenital disorder, rather than a disorder that was acquired in service. Congenital or development defects are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c) (2011). Because this is a developmental disorder for which service connection may not be granted, the Board does not reach the question of whether an allergy to a certain medication is a current disability. In the absence of any evidence that the Veteran has a current disability, service connection is not warranted and the claim must be denied. See 38 C.F.R. § 3.303; Rabideau, 2 Vet. App. at 143; McClain, 21 Vet. App. at 321. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in a June 2006 letter. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service and private treatment records have been associated with the claims folder and he was afforded appropriate VA examinations in connection with his claim. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. ORDER Service connection for allergic reaction/allergy to aspirin, claimed as manifested by itchy and swollen lips and urticaria, is denied. REMAND As noted above, service connection for "cardiac condition aortic insufficiency, tricuspid insufficiency, atrial fibrillation, medication required," was denied in the October 2007 rating decision that is the subject of this appeal. Although the Veteran did not perfect an appeal as to that issue, the RO has indicated that the claim is on appeal such that the issue is being referred to the AOJ. The Board finds that this issue is inextricably intertwined with the issue of entitlement to an initial compensable rating for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated); see also 38 C.F.R. § 4.104, Diagnostic Code 7101, Notes (1) and (2) (2011). As such, a decision on the claim for increased rating will be deferred pending adjudication of the referred claim and the development needed as discussed below. The Veteran underwent a VA examination in January 2009, at which time physical examination revealed pulse of 65/min and blood pressure readings of 119/88, 131/88 and 130/86. Examination of the heart was reported as abnormal as findings showed S1 S2 with soft grade 2/6 murmur, but did not reveal any evidence of congestive heart failure, cardiomegaly or cor pulmonale. The examiner reported that EKG was within normal limits and that a stress test was not performed because an echocardiogram provides more reliable results to valvular disease. The examiner reported that an Echo was conducted and the ejection fraction of the left ventricle was 65 percent. The examiner noted that the echocardiogram result stated normal left ventricular ejection fraction; trivial aortic insufficiency; and mild tricuspid regurgitation. The Veteran's METs level was 5-7 because he was able to achieve the following activities: level walking (4.5-5.0 mph), stream fishing and easy digging in the garden. Chest x-ray showed normal heart size. The Veteran was diagnosed with aortic and tricuspid insufficiency and atrial fibrillation on B-blocker now normal sinus rhythm. Given the findings at the most recent VA examination and the fact that the criteria used to evaluate hypertension dictate that hypertension due to aortic insufficiency should be evaluated as part of the condition causing it rather than by a separate evaluation and that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease, the Board finds that a more contemporaneous and detailed examination conducted by a cardiologist would be helpful in determining how to correctly rate the Veteran's hypertension. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, preferably with a cardiologist, to determine the current severity of his service-connected hypertension. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should identify all residuals attributable to the Veteran's service-connected hypertension. The examiner should also include a discussion of the clinical significance, if any, of the aortic and tricuspid insufficiency and atrial fibrillation on B-blocker now normal sinus rhythm, as it relates to the service-connected hypertension. The examiner should specifically discuss service treatment records and post-service medical evidence of record as it relates to these conditions. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 2. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 3. Finally, readjudicate the claim for entitlement to an initial compensable rating for hypertension. The RO/AMC is reminded that this issue is inextricably intertwined with the claim for service connection for "cardiac condition aortic insufficiency, tricuspid insufficiency, atrial fibrillation, medication required," which the Board has referred. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 or by the U.S. 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. 2010). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs