Citation Nr: 1301396 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 12-26 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hay fever (allergic rhinitis). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 25, 1960 to December 16, 1960. The Veteran also has an unverified period of Reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for hay fever. The issues of entitlement to service connection for sinusitis and sleep apnea have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the September 2012 substantive appeal. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent statement of the case (SOC). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that his current hay fever was caused or aggravated by his military service. Essentially, the Veteran has two casual theories regarding his currently diagnosed hay fever: (1) this condition did not pre-exist service, but rather, was caused by service, and (2) this condition existed prior to service, but was permanently worsened by service. Notably, an abnormality of the Veteran's sinuses was not noted on the Veteran's April 1960 entrance examination. However, his April 1960 report of medical history notes a history of hay fever. There were no complaints upon examination testing, and the Veteran's sinuses were normal. In this regard, the Board notes that only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). A history of the pre-service existence of a condition does not constitute a notation of such condition, but will instead be considered together with all other material evidence in determining the inception of such condition. See 38 C.F.R. § 3.304(b)(1). Service treatment records also reveal that, upon discharge, the Veteran reported having hay fever on his November 1960 report of medical history. The physician noted that the Veteran had no illnesses relating to hay fever in service. However, on his February 1965 report of medical history, the Veteran again indicated he had experienced hay fever. The physician noted that the Veteran had mild seasonal hay fever. Post service treatment records reflect treatment for environmental allergies and allergic rhinitis. In his September 2012 substantive appeal, the Veteran reported being exposed to the outdoor elements, such as trees, ragweed, golden rod, pollinated plants, and weeds during his eight weeks of basic training in service. He asserted that his hay fever became severely aggravated by the outdoor exposure and service connection is warranted for hay fever. In light of the above, further development is required because the medical evidence of record does not contain sufficient information to address the required legal inquiry. See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, it is incumbent on the Board to remand this matter to supplement the record prior to adjudicating this claim. See Wallin v. West, 11 Vet. App. 509, 513 (1998); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board also finds that verification of the Veteran's service, to include reserve service, must be undertaken prior to final adjudication of the Veteran's claim. As mentioned above, the Veteran served on active duty from June 1960 to December 1960, as reflected on his DD Form 214. However, of record are statements of physical condition from July 1961 to August 1965, as well as a report of medical examination for the United States Army Reserves dated February 1965. A remand is necessary in order to obtain the Veteran's complete service treatment records, which includes any reserve duty, from any appropriate facility, to include the National Personnel Records Center (NPRC) and the Records Management Center (RMC). Finally, on remand the Veteran's complete treatment records should be obtained from Dr. Howard at Watson Clinic and from Anant Shah, M.D. at JSA Zephyrhills Medical Center. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC, RMC, and/or any other appropriate agency, to verify the specific dates of the Veteran's active duty, ACDUTRA, and/or INACDUTRA. Service records providing points are not helpful in this regard. In addition, the RO should attempt to obtain any available treatment and personnel records associated with any reserve service. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Make arrangements to obtain the Veteran's complete treatment records from Dr. Howard at Watson Clinic and from Anant Shah, M.D. at JSA Zephyrhills Medical Center. Actual treatment records, as opposed to summaries, should be requested. 3. Thereafter, schedule the Veteran for a VA examination of his hay fever (allergic rhinitis). All necessary tests should be performed, and the examiner should identify all current respiratory disorders, to include hay fever. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including his service treatment records, his post-service medical records, and the lay statements and assertions. The examiner should provide an opinion as to whether any current hay fever (allergic rhinitis) undebatably pre-existed the Veteran's active service. If so, was it aggravated during service, i.e., did it undergo a permanent increase severity? State whether this finding is undebatable. (Note: aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints.) If aggravation is found, the examiner should address whether the permanent increase in severity was due to the normal progression or the disorder or whether such worsening constituted chronic aggravation of the disorder due to service. If it is determined that hay fever (allergic rhinitis) did not exist prior to service, the examiner should opine as to whether it is at least as likely as not (50% or greater probability) that it had its clinical onset during active service or is related to any event of service. The examiner should provide a clear and thorough rationale for the conclusion(s) reached and cite the evidence relied upon or rejected in forming an opinion. If the physician cannot respond without resorting to speculation, he/she should so indicate this and explain the reason why an opinion would be speculative. The claims folder should be made available to the examiner in conjunction with the examination and the report thereof should reflect that such review occurred. 4. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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. 2012). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).