Citation Nr: 1317960 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-35 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for allergic rhinitis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to June 2001, from July 2003 to March 2004, and from September 2005 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Service connection for allergic rhinitis (claimed as allergies) was denied therein. The Veteran appealed this determination. In October 2009, the Veteran appeared before a Decision Review Officer for an informal conference regarding this matter. This matter was remanded for additional development in January 2011. Such development now has been completed or at least substantially completed to the extent possible, as discussed below. Adjudication thus may proceed if otherwise in order. See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The Veteran currently has allergic rhinitis, but a nexus between it and his service has not been established, notwithstanding that allergic rhinitis was present during service. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.655 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. §§ 5103 (West 2002); 38 C.F.R. § 3.159 (2012). VA must notify the claimant and his representative, if any, prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information and any evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notification applies to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability evaluation and an effective date for the award of benefits will be assigned if service connection is awarded further must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Via letter dated in August 2007, the Veteran and his representative were notified of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Notice of all five service connection claim elements therefore was provided prior to the initial adjudication by the RO, which in this case also is the AOJ, in the November 2007 rating decision. Nothing more was required. It follows that the February 2011 letter renotifying the Veteran and his representative of all of the service connection claim elements exceeded what was required. In addition to the duty to notify, VA has a duty to assistance with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA is required to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Service treatment records, service personnel records, VA treatment records, and identified private treatment records regarding the Veteran have been obtained by VA. The private treatment records are dated only through July 2005. As such, the Board's January 2011 remand directed that the Veteran be requested to identify any private treatment records dated after July 2005. Such was done via letter dated in February 2011, but he failed to respond. A VA medical examination was conducted in September 2007. The examiner provided a diagnosis after reviewing the claims file, interviewing the Veteran, and undertaking a physical assessment of him. However, the Board pointed out in its January 2011 remand that the examiner did not provide a VA medical opinion regarding whether or not there was a service nexus for the diagnosis. Another VA medical examination followed by such an opinion therefore was directed. The examination was scheduled for March 2011, but the Veteran did not report for it. Of import in this regard, the aforementioned February 2011 notice letter conveyed that a Fargo VA medical facility would alert the Veteran to the date, time, and place of the examination. If a copy of the letter concerning these examination specifics is not in the claims file, this raises a potential presumption of regularity problem. Kyhn v. Shinseki, __ F.3d __, No. 2012-7003, 2013 WL 1846562 (Fed. Cir. May 3, 2013), rev'd, 23 Vet. App. 335 (2010). It indeed is difficult to assume notice was received unless it can be confirmed that notification was mailed to the last known address of record. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Here, however, a copy of the letter concerning the examination specifics from the Fargo VAMROC dated in February 2011 has been associated with the claims file. The address used for the Veteran had been valid for years prior thereto and by all indications remains valid today. No mail sent to him there has been returned as undeliverable. No other address has been referenced. The presumption of regularity accordingly has not been rebutted by clear evidence to include an incorrect address, indication of another address, or mail returned as undeliverable. Id.; Schoolman v. West, 12 Vet. App. 307 (1999), Cross v. Brown, 9 Vet. App. 18 (1996); Piano v. Brown, 5 Vet. App. 25 (1993). A mere assertion by the veteran that notification was not received does not constitute clear evidence rebutting this presumption. Schoolman, 12 Vet. App. at 309; Butler v. Principi, 244 F.3d. 1337 (Fed. Cir. 2001). Here, the Veteran does not even go this far. His representative indeed submitted a March 2012 statement indicating only that he does not remember receiving notification. It therefore is presumed that he received notification of the March 2011 VA medical examination. The failure to report for examination is excused only if the failure was for good cause. 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, illness or hospitalization of the claimant and the death of an immediate family member of the claimant. Id. Absent good cause, the failure to report for an examination with respect to an original compensation claim results in evaluation of the claim on the basis of the evidence of record. 38 C.F.R. § 3.655(b). It is not necessary to remand so that another VA medical examination can be scheduled in this situation, in other words. The February 2011 notice letter, in addition to the above, informed the Veteran of all of this. Nevertheless, no explanation for his failure to report was provided other than that in the March 2012 statement from his representative. No good cause thus is found. The Veteran's willingness to report should his VA medical examination be rescheduled, which was noted in the aforementioned statement, therefore is inconsequential. Neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any further development. Therefore, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Adjudication thus may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran contends that he has allergic rhinitis as a result of his active duty service. In particular, he contends that he has had allergic rhinitis in the spring ever since his deployment to Bosnia during his second period of service from July 2003 to March 2004. Service connection "basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1110. To establish service connection, there generally must be evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service injury or disease. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established for any disease diagnosed after discharge when all the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Allergic rhinitis is not a chronic disease. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). Service connection therefore cannot be established for it, in addition to the above, through chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further, service connection cannot be presumed for it. 38 U.S.C.A. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309. The Board must explain what evidence it finds to be persuasive and unpersuasive as well as explain why any evidence favorable to the Veteran is unpersuasive. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay (non-medical) evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself to support a claim. Barr, 21 Vet. App. at 303. This is the case where it is both competent and credible. When there is an approximate balance of positive and negative evidence, the benefit of the doubt is given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The veteran thus prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against his claim. Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In this case, the Board finds that service connection for allergic rhinitis is not warranted. All necessary requirements for establishing entitlement to this benefit are not met. There can be no valid claim if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of such claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in July 2007. A May 2004 private treatment record contains a diagnosis of allergic rhinitis, while a March 2005 private treatment record reveals that there had been no change with respect to his allergies. He complained of rhinorrhea, sinus pressure, increased dry cough, and itchy/watery eyes for one to two months every spring at the September 2007 VA medical examination. Although it was noted that he was asymptomatic at that time, allergic rhinitis was diagnosed. VA treatment records dated in 2008 and 2009 further show that he was prescribed medication for allergies. The Veteran, as such, undisputedly has had a current disability through the entire pendency of his claim. Service personnel records show that the Veteran was in Bosnia from September 2003 to February 2004. Service treatment records dated during this timeframe are silent with respect to allergic rhinitis or any of the aforementioned symptoms attributed by him to this condition. The Veteran indeed denied having or developing chronic cough and runny nose during his deployment in February 2004. He further indicated that his overall health was the same then as compared to when it last was assessed. As such, the incurrence of allergic rhinitis or the aggravation of pre-existing allergic rhinitis is not found. Notwithstanding the above, service treatment records dated other than when the Veteran was in Bosnia document numerous complaints of the aforementioned symptoms and/or similar symptoms such as congestion, post-nasal drip, sore throat, difficulty swallowing, a cough, and sinus pain. A condition other than allergic rhinitis, such as pneumonia, upper respiratory infection, bronchitis, or pharyngitis, often was diagnosed. However, allergic rhinitis may have been diagnosed in June 2001. The diagnosis indeed is somewhat difficult to read. A diagnosis of allergic rhinitis is found, in light of the uncertainty, because doing so is most favorable to the Veteran. Allergic conjunctivitis was diagnosed in October 2006. Allergic conjunctivitis is "conjunctival inflammation, itching, tearing, and redness caused by allergens." Dorland's Illustrated Medical Dictionary, 412 (31st ed. 2007). It follows that there were manifestations of allergic rhinitis and allergies during the Veteran's service. The in-service manifestations necessitate consideration of the presumption of soundness. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). A veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at that time. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran denied ear, nose, or throat trouble as well as eye trouble, chronic or frequent colds, hay fever, and chronic cough at his September 2000 entrance examination. In any event, a history of a condition recorded at the time of examination does not constitute a notation of that condition. 38 C.F.R. § 3.304(b)(1). Noted means only a condition recorded upon examination. 38 C.F.R. § 3.304(b). The Veteran's nose, sinuses, mouth, throat, ears, and eyes were found to be normal at the aforementioned examination. The presumption of soundness therefore applies. This presumption is rebutted where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior to examination, acceptance, and enrollment for service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1089. Clear and unmistakable evidence is an onerous evidentiary standard requiring that the conclusion be undebatable. Cotant v. Principi, 17 Vet. App. 116 (2003). There is no evidence here, let alone clear and unmistakable evidence, that the Veteran had either allergic rhinitis or allergies prior to his first period of service. As such, this matter is one of incurrence of allergic rhinitis during service rather than aggravation of pre-existing allergic rhinitis during service. In this regard, acknowledgement is given to the fact that this matter thus far has been adjudicated as one of aggravation of pre-existing allergic rhinitis during service rather than incurrence of allergic rhinitis during service. It has been adjudicated thus far as opposite as the Board is doing so here, in other words. The cause of this discrepancy is the June 2001 service treatment record. Either it was overlooked previously or was read differently than the Board reads it here. The first diagnosis of allergic rhinitis therefore was deemed to be the May 2004 private treatment record. This was between the Veteran's second and third periods of service such that aggravation of pre-existing allergic rhinitis during the third period of service was of crucial import. As such, consideration was given to whether or not allergic rhinitis was permanently worsened beyond natural progression, rather than simply temporarily or intermittently flared-up, during the third period of service. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The October 2006 diagnosis of allergic conjunctivitis, though not mentioned, thus is of import. The aforementioned discrepancy, while unfortunate, is not prejudicial. It is reiterated that the Board's reading of the June 2001 service treatment record is favorable to the Veteran. This decision further does not turn solely on whether allergic rhinitis was incurred or was aggravated, assuming such can be proven for the sake of argument, during service. No nexus has been established between the current allergic rhinitis and service, regardless of whether allergic rhinitis symptoms were present during service. The Veteran clearly believes there is a nexus between his current allergic rhinitis and his service. There is no indication that he possesses medical knowledge, medical training, or medical expertise otherwise obtained, so he is a lay person. Lay evidence sometimes is sufficient to prove nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It indeed is error to suggest that lay evidence can never be sufficient to satisfy the nexus requirement. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Whether there exists a nexus in this particular case falls outside the province of a lay person, however. It instead is a medical question. The Veteran's several periods of service, the numerous potential causes of allergic rhinitis or at least the underlying allergies, as well as the fact that the Veteran's allergic rhinitis is only seasonal indeed make the question complex. Only those with specialized medical knowledge, training, and/or expertise are competent where the determinative issue is one of medical causation. Jones v. West, 12 Vet. App. 460 (1999). The Veteran thus is not competent to render an opinion that there exists a nexus between his allergic rhinitis and his service. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. His credibility in this regard accordingly need not be addressed. No medical opinion from a private physician concerning a nexus between the Veteran's current allergic rhinitis and his service is of record. As noted above, no medical opinion concerning this nexus was rendered at the September 2007 VA medical examination and the Veteran failed to report for a March 2011 VA medical examination which was to have included a medical opinion concerning this nexus. Such an opinion would have taken into consideration all pertinent evidence to include the presence of allergic rhinitis during service as well as the Veteran's report of having allergic rhinitis persistently every spring since service, as the Board's January 2011 remand directed that his history be considered. He is competent in giving this report because symptoms would have been experienced by him personally every spring. Layno v. Brown, 6. Vet. App. 465 (1994). His credibility in giving it need not be considered. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). Neither a determination that he is credible nor a determination that he is not credible alters the outcome of this decision. It is reiterated that, given the Veteran's failure to report for a second VA medical examination complete with medical opinion, this decision is to be made on the basis of the evidence of record. 38 C.F.R. § 3.655(b). The decision is to be made on the basis of no medical opinion, in other words, which as discussed above is necessary. The Board indeed is prohibited from rendering its own opinion on a medical question like nexus is here. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, a nexus between the Veteran's current allergic rhinitis and his service has not been established. In sum, the Veteran has a current disability. He has been found to have symptoms of allergic rhinitis during service. The first diagnosis of the disease thus was made during service as opposed to following service. Yet there is no medical opinion establishing a nexus between the disability and the Veteran's service. The preponderance of the evidence accordingly is against the Veteran's claim under the applicable theory of entitlement. As such, the benefit of the doubt is inapplicable. Service connection for allergic rhinitis is denied. ORDER Service connection for allergic rhinitis is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs