Citation Nr: 1342540 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-11 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2009, the Veteran testified at a personal hearing before a Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In October 2009, the Board remanded the issue on appeal for further development. The case was subsequently returned for further appellate review. In a September 2011 decision, the Board denied the claim of entitlement to service connection for rhinitis. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a Joint Motion for Remand in May 2012, requesting that the Court, in relevant part, vacate the Board's September 2011 decision to the extent that it denied service connection for rhinitis. In a May 2012 order, the Court granted the Joint Motion, vacating the Board's September 2011 decision with respect to the denial of service connection for rhinitis and remanding the case to the Board for compliance with directives that were specified by the Joint Motion for Remand. In October 2012, the Veteran was notified that the Veterans Law Judge who conducted the July 2009 hearing was no longer with the Board. He was offered an opportunity to testify at another hearing. 38 C.F.R. §§ 20.707, 20.717 (2013). Later that month, VA received a response from the Veteran stating that he did not wish to appear at another hearing. Therefore, the Board has proceeded with adjudicating the Veteran's claim. In May 2013, the Board remanded this case for additional development, and the case has been returned for further appellate review. The Board notes that the May 2013 Board decision also denied service connection for sinusitis and remanded the claim of entitlement to service connection for chronic prostatitis for further development. On remand, in an August 2013 rating decision, the Veteran was granted service connection for chronic prostatitis and assigned a 40 percent rating effective September 26, 2007, and a noncompensable rating from June 6, 2013. The May 2013 rating decision also found that new and material evidence had been received to reopen the claim of entitlement to service connection for sinusitis. Service connection for sinusitis was granted and a 10 percent rating was assigned effective September 26, 2007. FINDING OF FACT The Veteran's pre-existing rhinitis was aggravated by his military service. CONCLUSION OF LAW The Veteran's rhinitis was aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that records on file are sufficient to resolve the matter in the Veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken herein below. II. Service Connection The Veteran has claimed entitlement to service connection for rhinitis. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 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). To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(a); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345-47 (Fed. Cir. 2002). Temporary or intermittent flare-ups of a preexisting disorder are not sufficient to constitute aggravation. Rather, the underlying condition must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the case at hand, the Veteran's nose and sinuses were found to be clinically normal at the time of his September 1969 enlistment examination, and he is thus presumed to have been sound at the time of his entrance into service. Nevertheless, the Board finds that there is clear and unmistakable evidence that his allergic rhinitis pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Specifically, in his September 1969 enlistment medical history report, the Veteran noted that he suffered from mild seasonal hay fever. The Veteran also has acknowledged, including at his July 2009 Board hearing, that he has had allergies, including hay fever, since his childhood. In this respect, hay fever is considered to be an acute seasonal form of allergic rhinitis. See C&P Medical Electronic Performance Support System (EPSS), Diagnostic Code 6522 (allergic or vasomotor rhinitis), at http://epss.vba.va.gov/mepss/. Consequently, the Board finds that evidence as a whole, including the Veteran's admission that he has had hay fever, or allergic rhinitis, since childhood and his September 1969 entrance examination report noting pre-existing mild seasonal hay fever, provides clear and unmistakable evidence that the Veteran's allergic rhinitis pre-existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board further finds, however, that the evidence of record does not clearly and unmistakably demonstrate that the Veteran's pre-existing rhinitis was not aggravated by service. Specifically, the Board finds that the medical opinions of record, while nominally weighing against the Veteran's claim, do not sufficiently explain how the evidence demonstrates that the Veteran's pre-existing rhinitis was not "clearly and unmistakably" aggravated by service. As noted in the Board's May 2013 remand, the January 2010 VA examination report applies the incorrect standard, merely determining that the Veteran's rhinitis "is less likely as not (less than 50/50 probability) caused by or a result of pre-existing hay fever." [Capitalization in quotation omitted.] The May 2012 joint motion noted this error and directed the Board to explain how the VA examiner's assertion that "[i]t is unlikely that a permanent increase in his allergies were a result of his time in Thailand but I don't have pre and post Thailand allergy tests to compare" satisfies the "undebatable" standard that is set out in Cotant v. Principi, 17 Vet. App. 116, 131 (2003). The January 2010 VA examiner provided the following rationale for his etiology opinion: He describes a worsening of his allergies while he was in Thailand during the service and states that once he got back to the US his allergies were worse subjectively. In my opinion, if he had an increase in his allergic response due to an antigen in Thailand it would have been resolved when he left. On the other hand if something about his disease process changed the symptoms should be more prevalent (year round) and not continue to be mainly seasonal. It is unlikely that a permanent increase in his allergies were a result of his time in Thailand but I don't have pre and post Thailand allergy tests to compare. Based on my history and physical exam, there was no permanent increase in his allergic rhinitis severity. Additionally, his allergic rhinitis is not a result of his military service. In May 2013, the Board remanded this claim in order to obtain an adequate medical opinion that applies the correct evidentiary standard (the "clear and unmistakable" standard that is applicable to presumption of soundness claims rather than the "at least as likely as not" standard that applies to regular service connection claims). The requested opinion was obtained in June 2013. Following review of the claims file and interview and examination of the Veteran, the VA examiner (who did not author the January 2010 opinion), found that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The June 2013 VA examiner provided the following rationale for her etiology opinion: Veteran describes initial worsening of his allergies while he was stationed in Thailand once he got back to the US his allergies were worse subjectively. In my opinion, if he had an increase in his allergic response due to an antigen in Thailand it would have been resolved when he left. On the other hand if something about his disease process changed the symptoms should be more prevalent (year round) and not continue to be mainly seasonal. It is unlikely that a permanent increase in his allergies were a result of his time in Thailand but there is no documentation of pre and post Thailand allergy tests to compare. Based on today's history and physical exam, I cannot find any evidence to support Veteran's claim of permanent increase in his allergic rhinitis severity. Additionally, his allergic rhinitis was a pre-existing condition. The Board notes that, while the opinion that is expressed in the June 2013 examination report does employ the correct standard, the rationale is remarkably similar to the rationale that was judged to be inadequate by the May 2012 Joint Motion. The Board agrees that the January 2010 rationale did not adequately rebut the extremely high standard that is set forth in presumption of soundness claims, and does not find essentially the same analysis as restated in the June 2013 VA examination report to be any more compelling. Therefore, rather than remanding this claim for another opinion, the Board will resolve any remaining reasonable doubt in favor of the Veteran and finds that the presumption of soundness in this case has not been rebutted. Therefore, the Board finds that entitlement to service connection for rhinitis is warranted. ORDER Entitlement to service connection for rhinitis is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs