Citation Nr: 1320312 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-01 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In her June 2010 substantive appeal, the Veteran requested a hearing before a member of the Board. A hearing was scheduled for October 2011; however, the Veteran failed to appear and she did not request that a new hearing be rescheduled. Therefore, the Veteran's request is considered withdrawn. This matter was previously before the Board in February 2012, at which point it was remanded for further development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. FINDING OF FACT The relevant competent evidence is in relative equipoise as to whether the Veteran's allergic rhinitis began during active service. CONCLUSION OF LAW With application of the doctrine of reasonable doubt, allergic rhinitis was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the Veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). The Veteran contends that she is entitled to service connection for allergic rhinitis as such disability was caused or aggravated by her active service. Specifically, she asserts that while stationed at Ft. Hood, Texas and while serving in Southwest Asia, she developed constant allergies, and that since separation from service she has continued to suffer from constant allergy problems. The Board notes that the Veteran is competent to report when she first experienced symptoms of allergic rhinitis and that they have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that assertion. A review of the Veteran's service treatment records (STRs) shows that on October 2001 enlistment examination shows a notation of an allergy to cats. A July 2002 STR shows that the Veteran sought treatment for complaints of right ear pain and sinus congestion. She was prescribed acetaminophen, amoxicillin, afrin nasal spray, and directed to increase her fluid intake and to return to the clinic should her symptoms not improve. There is no indication that she returned to the clinic. Her STRs also contain a post-deployment questionnaire from April 2004, following her deployment to Southwest Asia. The questionnaire documents the Veteran's reports of exposure to smoke from burning trash and feces and exposure to sand/dust, and that since her deployment she had been suffering from a chronic cough and redness of the eyes with tearing. On September 2004 separation examination, the Veteran reported that she had no known drug allergies. She denied any symptoms of chronic cough or cough at night, sinusitis, hay fever, wheezing or problems with wheezing, and eye disorder or trouble, providing evidence against her own claim. Of record is a November 2004 VA treatment record which shows that shortly after her separation from active service, the Veteran sought treatment at the VA Medical Center. At that time, she was given a diagnosis of allergic rhinitis and allergic conjunctivitis and prescribed Claritin, Flonase, and Vasocone. An August 2007 VA treatment record which shows the Veteran complained of problems with allergic nasal discharge. She was assessed with allergic rhinitis and prescribed Flonase and Claritin. Also of record are private treatment records from Kings Daughters Clinic in Killeen, Texas, which show that the Veteran sought treatment for her allergic rhinitis symptoms. An October 2008 record shows that the Veteran was given a diagnosis of allergic rhinitis and allergic conjunctivitis after undergoing prick skin testing to determine her level of allergic response. She was recommended for immunotherapy to treat her allergic rhinitis and conjunctivitis symptoms. A subsequent record from January 2010 shows that the Veteran was seen for follow-up care, and was again recommended for immunotherapy. At a May 2010 hearing before a Decision Review Officer (DRO) at the RO, the Veteran testified that prior to her active service she suffered from occasional seasonal allergies and that she was allergic to cats. She testified that following her enlistment, she was assigned to Ft. Hood, in Texas, and at that point began to develop a more serious allergy problem. She reported that she was treated at Ft. Hood for allergies and that she was prescribed Allegra. She reported that her symptoms continued to worsen when she was deployed in Southwest Asia and have continued since her separation from active service. The Veteran was afforded a VA examination in October 2012. At that time she reported that while she was deployed in Southwest Asia, she was exposed to burning fumes that made her allergies worsen and that she has been having constant trouble with her nose since. After examination, the examiner diagnosed allergic rhinitis and opined that it was less likely than not that the Veteran's exposure to burning fumes in Southwest Asia permanently aggravated her allergic rhinitis. He explained that the Veteran had reported she had mild allergic rhinitis symptoms prior to her deployment in Southwest Asia, and that her symptoms worsened following her deployment, but that these reports were not evidence of a permanent worsening. The Board finds that the October 2012 opinion is inadequate. In this regard, the Board notes that the examiner noted that the Veteran's symptoms did not constitute a permanent worsening. However, the VA examiner failed to consider whether the Veteran's symptoms were actually incurred in active service. Therefore, as the October 2012 opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. In January 2013, the Veteran's claims files were sent for a medical review and opinion regarding the nature and etiology of the Veteran's allergic rhinitis. After review of the Veteran's claims files, including the October 2012 VA examination, the January 2013 opinion provider stated that there was no medical evidence or documentation indicating that the Veteran entered service with acute or chronic rhinitis, and therefore opined that it was less likely than not that the claimed allergic rhinitis pre-existed service. The opinion provider further opined that it was less likely than not that the Veteran's allergic rhinitis was incurred in, caused by, or permanently aggravated by the Veteran's active service, to include her exposure to toxins during her deployment to Southwest Asia. As support for her opinions, the opinion provider cited solely to the Veteran's STRs and noted that there was no evidence that the Veteran sought treatment for symptoms related to allergic rhinitis while on active service. The Board finds that this opinion is also inadequate. In this regard, the Board notes that there is no indication that the January 2013 opinion provider took into account the Veteran's lay statements regarding the onset of her symptoms in service or that they have continued since. Additionally, there is no indication that the opinion provider considered the November 2004 VA treatment record that documents a diagnosis of allergic rhinitis within a matter of weeks of the Veteran's separation from active service. Therefore, as the January 2013 opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board finds that the record contains evidence both for and against the claim. Notably, the Veteran's lay statements regarding the onset of her symptoms during active service and the November 2004 diagnosis of allergic rhinitis tends to support her claim that her allergic rhinitis was incurred in or caused by her active service. The evidence against the claim consists of the October 2012 VA examination report and the January 2013 VA opinion. However, upon review of the October 2012 VA examination report and the January 2013 VA opinion, the Board has found that these opinion are inadequate for adjudication purposes. Thus, upon review of the evidence of record, the issue of whether the Veteran's allergic rhinitis had its onset during active service is in relative equipoise, i.e., about evenly balanced for and against the claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's allergic rhinitis was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). As such, the Board will grant this appeal. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for allergic rhinitis is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs