Citation Nr: 1322113 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-14 551 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for claimed allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to February 1971. He also served in the Naval Reserve for periods in the 1970s and 1980s. This matter initially came before the Board of Veterans' Appeal (Board) on appeal from an October 2006 rating decision by the RO. In October 2011 and January 2013, the Board remanded the claim for additional development. For the following reasons, the RO/Appeals Management Center (AMC) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through 2013. As the AMC had the opportunity to review these records-as reflected in a May 2013 supplemental statement of the case-remand for initial RO consideration of these records is not warranted. FINDING OF FACT The currently demonstrated allergic rhinitis is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by allergic rhinitis is not due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided VCAA notice letters to the Veteran in April 2006, December 2006, June 2007, and October 2008. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection. These letters also informed the Veteran of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the April 2006 letter. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. Pursuant to the January 2013 remand, the VA treatment records dated through 2013 were associated with the claims folder. The Veteran underwent VA examination in November 2011 determine the etiology of the claimed allergic rhinitis, as instructed in the previous October 2011 remand. The examiner provided the requested opinions in compliance with the remand instructions in this regard as well. Stegall, 11 Vet. App. at 271. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), and is not applicable to the claim on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he is entitled to service connection for allergic rhinitis, as he believes that this disability had its onset during his active duty service. He reports experiencing symptoms of runny nose, watery eyes, constant sneezing, and headaches during his service on a submarine. He indicated that these symptoms began as soon as fresh air was introduced into the system or the hatches were opened to outside air. He alleges that he was told that he had developed allergies to the pollens in the Hawaiian environment. In the alternative, he asserts that his problems with allergic rhinitis began as a result of exposure to asbestos in service. The Veteran's service treatment records include a November 1969 report reflecting his complaints of intermittent congestion ever since he was treated for a frontal skull fracture 18 years earlier. A diagnosis of questionable serous otitis was indicated. Another November 1969 report reflects the Veteran's report that he still had congestion. An impression of acute otitis media was noted. A January 1970 report notes the Veteran's complaints of having persistent rhinorrhea and cough. An impression of resolving right otitis media was indicated. A February 1971 report reflects that the Veteran was suffering from a cold. The sinuses were noted to be normal at the time of the February 1971 discharge examination, and there was no indication of treatment or diagnosis of allergies or allergic rhinitis. A May 1987 report from a period of the Veteran's Naval Reserve duty includes a notation referencing allergies. However, in July 1986, March 1987, March 1988, and June 1989, the periodic examination and reports of medical history completed by the Veteran do not reference any allergies or allergic rhinitis. A February 2009 VA outpatient treatment report reflects the Veteran's report of allergies and experiencing an episode of bronchitis generally once a year. A May 2009 VA outpatient treatment report reflects a diagnosis of allergic rhinitis. A history of allergies was indicated. These records further disclose that the Veteran was prescribed medication for treatment of his allergies. At a VA examination in November 2011, the Veteran reported having constant dripping of the sinuses. He indicated that his nose started running just by bending over and that the onset of this condition was in 1975 when he was in Hawaii, after he had been in Colorado for graduate school and after service. He reported seeing VA doctors in approximately 2005 for the condition. The examiner indicated that the Veteran had allergic rhinitis with greater than 50 percent obstruction of the nasal passage on both sides. The examiner diagnosed allergic rhinitis and noted that the Veteran's records from service noted several complaints of ear, nose and throat problems. She also noted that the Veteran reported being told that he developed allergies to the pollens in Hawaii and had no issues with allergies prior to this. However, the VA examiner determined that the claimed allergic rhinitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner noted that the Veteran had been treated once in 2009 for allergic rhinitis and that the service records did not indicate that he had been treated for allergic rhinitis. She added that the Veteran reported that his allergic rhinitis started in 1975 or 1976. As this was after the Veteran's discharge from service, the examiner found it less likely than not that the condition would be service-connected. A March 2013 VA outpatient treatment report includes a notation of seasonal allergies. The record does reflect a current diagnosis of allergic rhinitis. However, given the evidence outlined hereinabove, the Board finds that the weight of the evidence is against the Veteran's claim of service connection. The record does not document allergic rhinitis until 2009, over 35 years since the Veteran's discharge from service. Although he voiced complaints of congestion and coughing during service, these symptoms were attributed to acute otitis media during service, and his sinuses were reported to be normal at the time of his discharge examination. The Veteran also was afforded numerous examinations during his period with the Naval Reserve, but these did not identify allergic rhinitis. Moreover, the Veteran denied any problems related to allergic rhinitis on reports of medical history at the time of these examinations. As indicated, the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333; Shaw v. Principi, 3 Vet. App. 365 (1992). Here, there is more than mere silence. None of the probative evidence supports a finding of a relationship between the Veteran's service and his allergic rhinitis. The only pertinent medical opinion of record is that of the November 2011 VA examiner who had a thorough review of all pertinent evidence and found there is no relationship between the current allergic rhinitis and any circumstance of his service. Thus, the only probative medical opinion weighs against the claim, and neither the Veteran nor his representative has presented or identified any medical opinion or other competent evidence that, in fact, supports the Veteran's claim. The Board has also considered the Veteran's written statements to the effect that his allergic rhinitis was first manifested in service and that he has experienced these symptoms continuously since service. The Veteran is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. In this case, the Board finds that the lay statements are not consistent with earlier statements made by him during service and are of limited probative value. The separation examination report was normal, and there were no complaints with regard to the sinuses or allergies on examination for many years thereafter. In fact, Naval Reserve records contain numerous examinations and reports of medical history which fail to disclose a complaint or diagnosis of allergies or allergic rhinitis. When the Veteran initially sought treatment in 2009, he did not express continuous allergic rhinitis symptoms service with an onset in service. On examination, he likewise placed the onset of his allergic rhinitis in 1975 or 1976, approximately 5 years after his discharge from service. As regards the Veteran's contention that his allergic rhinitis is related to in-service asbestos exposure, the diseases associated with asbestos exposure include pulmonary fibrosis (asbestosis), tumors, pleural effusions, pleural plaques, mesotheliomas of pleura and peritoneum and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-MR part IV, subpart ii, Chapter 2, Section C9(b). Allergic rhinitis is not among the diseases known to be associated with asbestos exposure. There is also no medical evidence that serves to establish that the claimed allergic rhinitis resulted from the Veteran's exposure to asbestos, and he has provided any information suggesting a possible link. Finally, the Board has also considered the Veteran's statements to the effect that his allergic rhinitis is related to his military service, to specifically include his exposure to pollens, other environmental factors related to his service on a submarine and exposure to asbestos. As a lay person, the Veteran is competent to report that he personally observed, including symptoms. See Layno, 6 Vet. App. at 470. To the extent that the Veteran advances his own interpretation of his medical condition indicating that his current allergic rhinitis is related to service, the Board again acknowledges that lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at1316. In any event, the probative value of the Veteran's general assertions in this regard is outweighed by that of the specific, reasoned opinion of the physician who performed the November 2011 VA examination. Furthermore, the Board finds the Veteran's lay statement to be inconsistent with the normal findings at separation and for many years thereafter. In summary, the Board finds that the preponderance of the evidence establishes that the currently demonstrated allergic rhinitis is not due to a documented event or incident of his period of service. Accordingly, on this record, the claim of service connection for allergic rhinitis must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for allergic rhinitis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs