Citation Nr: 1329400 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-21 193A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for rhinitis. 2. Entitlement to service connection for a throat disorder WITNESSES AT HEARING ON APPEAL Appellant and his spouse REPRESENTATION Appellant represented by: John P. Dorrity, Agent ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to February 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2010; a statement of the case was issued in July 2011; and a substantive appeal was received in August 2011. The Veteran presented testimony at a Board hearing in July 2013. A transcript of the hearing is associated with the claims folder. The Veteran also sought a compensable rating for hearing loss. The claim was denied by the RO in an August 2012 rating decision. The Veteran submitted a notice of disagreement. In a January 2013 rating decision the RO granted a 10 percent rating for the hearing loss. Later that month, the Veteran's representative submitted a statement from the Veteran withdrawing the appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Current rhinitis is the result of an in-service injury. 2. The Veteran has throat disability associated with drainage related to rhinitis. CONCLUSIONS OF LAW 1. Rhinitis was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2013). 2. A throat disability as a manifestation of rhinitis was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify 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 light of the favorable decisions in this appeal, further notice or assistance is not required to aid the Veteran in substantiating his claim. Service Connection Service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also 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). In order to establish service connection there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA and private treatment records establish that the Veteran has current rhinitis with associated throat irritation. Hence a current disability is established. The Veteran has testified that he was treated for symptoms of rhinitis and throat irritation during service and has also reported irritation associated with his duties in construction during the Philippine campaign. Available service treatment records do not confirm his reports of treatment, but resolving reasonable doubt in his favor, the element of in- service incurrence is satisfied. The Veteran and his wife have provided an unclear history of his disease. At the hearing, his spouse indicated that the rhinitis and throat irritation had only been present for about 12 years, but she acknowledged that he had received private treatment for this condition prior to that time; and in an April 2011 statement she had indicated that symptoms had been present since service. The Veteran's testimony suggested that his disability had been present since service, but he had difficulty recalling the details. In response to a request from VA, ENT and Allergy Associates reported in February 2008 that the Veteran treated records had been destroyed because he had been treated there more than 13 years ago. The record contains two flawed medical opinions as to the relationship between the current disability and service. Following a VA examination in May 2011, the examiner provided a negative opinion as to the relationship between current rhinitis and service because there was no documentation of any nasal symptoms or diagnosis of rhinitis during service; and the examination showed no active nasal disease. A medical opinion that is based on the absence of documentation in service treatment records without considering a veteran's reports is insufficient. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran submitted an August 2011 treatment report from Dr. R.J.I. of Atlantic ENT Associates, P.A. The treatment report reflects that the Veteran complained of chronic rhinitis; and that clear mucus was dripping from his nose while he was in the office. The examiner stated that the Veteran had had this condition for years. The Veteran stated that he has had it ever since service; and that it began after being exposed to dirt and irritants while driving a truck in service. The physician noted that the Veteran "states this started after exposure to some type of dirt in the military and he has had it for all these years. More than likely there is a relationship to that." The private opinion is deficient in that the physician did not provide any specific rationale for the opinion. It is less deficient than the VA opinion; however, because it considered the Veteran's reports. It is therefore of more probative weight. Accordingly, the elements for service connection for rhinitis are demonstrated, and the claim is granted. Sore throat and sinus drainage are known complications of rhinitis. Allergic Rhinitis, A.D.A.M. Medical Encyclopedia (National Library of Medicine, National Institute of Health 2013); https://www.ncbi.hlm.nih.gove/pubmedhealth/pubmedhealth/PMH0 001816/. Service connection is granted for a throat condition on the basis of rhinitis. See 38 C.F.R. § 3.310. ORDER Entitlement to service connection for rhinitis is granted. Entitlement to service connection for a throat disability is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs