Citation Nr: 1751045	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  12-098 99	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for allergic rhinitis.

2. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Charles Cooper Geraty, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1984 to January 1988.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  In a subsequent November 2011 rating decision, the RO reopened the claim but found no new and material evidence and denied the claim.

In December 2014, the Board remanded the appeal to schedule the Veteran for VA examinations to determine the etiology of the Veteran's rhinitis and bilateral hearing loss. These examinations have been completed.

In October 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the RO. A transcript of the hearing is of record. 

The issue of bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The probative, competent evidence demonstrates that the Veteran's rhinitis pre-existed his military service.

2. The probative, competent evidence does not demonstrate that rhinitis is causally or etiologically related to active duty, nor was it worsened or aggravated beyond the natural progression of the condition.






CONCLUSION OF LAW

The criteria for service connection for rhinitis have not been met. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A September 2008 letter satisfied the duty to notify provisions, to include notification of the regulations pertinent to the establishment of service connection for the claimed disabilies. 

In addition, the record contains the Veteran's service treatment records, VA treatment records, VA examination report, identified private treatment records, and lay evidence. The Veteran underwent VA examinations in February 2009 and February 2015. The record demonstrates that the February 2009 VA examiners reviewed the Veteran's relevant medical history, to include his service treatment records, post-service treatment records, and lay testimony, completed a physical examination, and provided an opinion with sufficient rationale as to the clinical findings. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with regard to the Veteran's rhinitis has been met. 38 C.F.R. § 3.159 (c)(4). However, the February 2015 VA examination is inadequate as addressed in the remand portion of this decision.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103 (c)(2) (2014) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning his symptoms of and treatment for his rhinitis and hearing loss as well as his in-service and post-service symptomology and noise exposure. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. In addition, the Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars (VFW). No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran, and neither the Veteran nor his representative has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2).

There is no indication in the record that any additional evidence relevant to the issues is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486 ; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000).

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service, or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303 (b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2016); 38 C.F.R. §§ 3.307, 3.309. 

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). 

For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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 (b). 

Entitlement to Service Connection for Rhinitis

The Veteran seeks service connection for his currently diagnosed allergic rhinitis.
Service treatment records reflected treatment for rhinitis. The Veteran was treated in-service for rhinitis approximately 3 or 4 times per year in the fall and winter from 1984 to 1988. The Veteran's service treatment records do not indicate any other treatment.

However, at his induction examination, the Veteran noted a history of hay fever and sinusitis.  Based on the induction examination report, the Board finds the record indicates that allergic rhinitis, including hay fever, pre-existed active duty. Therefore, the appropriate question to determine entitlement to service connection is whether any pre-existing rhinitis worsened in service, and if so, whether the disability was clearly and unmistakably not aggravated beyond the natural progression of the disease by active duty. 38 C.F.R. § 3.306 (2014).

In written statements of record as well as during his October 2014 Board hearing, the Veteran had noted that he suffered from rhinitis prior to his active service in the Navy. The Veteran noted "I had had hay fever before I went into the service" and stated that he suffered from allergies all his life.  However, the Veteran has asserted that he was exposed to constant fumes from engines, cleaning solutions, fuels, asbestos, and from sanding and grinding materials during service, which worsened his allergic rhinitis.

The Veteran's private and VA treatment records do not indicate a worsening of his pre-existing rhinitis. The Veteran's records show far less treatment for rhinitis since leaving service than during service. In fact, the records indicate a stable condition which is being treated with medication.  The Board finds this evidence is very credible regarding the issue of whether the Veteran's condition has worsened over time.

In February 2009, the Veteran underwent a VA examination. In this examination, the Veteran denied having problems with allergies or rhinitis prior to the entry into the Navy, the problems began after being on board the ship for a couple months. He complained of watery eyes, runny nose, nasal congestion and sneezing.  The examiner found that based on the Veteran s past medical history of allergies and hay fever prior to military the numerous visits to medical during the military, medical literature and the C & P exam it is this examiner's opinion that the Veteran s allergic rhinitis was not caused by the Veteran's military service but was due to the natural progression of the condition with continued exposure to allergens and the septal deviation and osteomeatal narrowing anatomic abnormalities."

In a February 2015 VA medical opinion, the examiner found that "the allergic rhinitis clearly and unmistakably pre-existed military service.  The Veteran's testimony today reveal(s) he had allergic rhinitis during his youth and sought treatment for it during that period of time. The description the Veteran provided today clearly revealed the condition of allergic rhinitis pre-existed military service. The physiology of immune mediated environmental allergic response also supports what the Veteran stated in having pre-existing allergic rhinitis prior to military service.

The VA examiner also opined that the pre-existing allergic rhinitis did not worsen in service and not aggravated beyond the natural progression of the disease by service. Events in military service were essentially acute flair ups of the pre-existing condition and not a permanent worsening or aggravation leading to a severe form of the disease. The nature of these flair-ups where essentially like a flair-up the Veteran had prior to service. Simple over-the-counter medication was used. The disease manifestation did not require an upward trajectory in the intensity of care needed to treat the condition.

The Board acknowledges that the Veteran is competent to describe symptoms, such as watery eyes, sneezing, and congestion, which he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, a layperson without medical training is not qualified to render a medical opinion concerning the etiology or progression of rhinitis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Here, the evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the medical progression of his pre-existing rhinitis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. 

After a thorough review of the evidence of record, the Board notes that while service treatment records and post-service contained notations of rhinitis, the May 2015 VA examiner specifically opined that the Veteran's allergic rhinitis was not worsened or aggravated by his military service. The Board has determined that this examination is the most credible evidence related to the Veteran's condition and its etiology. In view of the totality of the evidence, including the documented in-service treatment for sinusitis, post-service findings of sinusitis and rhinitis, and findings contained in the February 2009 and February 2015 VA examination reports, the Board finds that the Veteran's currently diagnosed sinusitis and rhinitis has not shown an increase in symptomology or frequency during or following his active military service. The Board finds that there is clear and unmistakable evidence against the Veteran's claim and, therefore, the applying the benefit-of-the-doubt doctrine is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Entitlement to service connection for rhinitis is denied.


REMAND

Unfortunately, due to reasons that follow, a remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration.

The Veteran is seeking service connection for bilateral hearing loss. In February 2015, the Veteran underwent an audiological examination that found bilateral hearing loss and right ear hearing loss which pre-existed military service. However, the examiner noted that there was "No separation exam available at the time of appointment. However, the Veteran reported the onset of hearing loss near 2005 (17 years after AD), therefore, the current loss is less likely as not related to military service."  Specifically regarding the pre-existing right ear hearing loss, the examiner stated "Vet had a mild hearing loss in the right ear at enlistment. No separation exam available at the time of appointment...A separation exam is required to determine aggravation." Since the examiner noted that a separation examination is required to determine aggravation, the Board determines that this examination is inadequate. The Board further notes that the Court has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Therefore, the Board must remand this claim for reconsideration by the examiner. The examiner should review the Veteran's service treatment records contain several in-service audiology examinations, including a January 1988 separation examination, to properly evaluate the etiology of the Veteran's currently diagnosed hearing loss. 

Accordingly, the case is REMANDED for the following action:

1. Return the claims file to the VA examiner who offered the February 2015 opinion. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims file and the Remand have been reviewed. The examiner should note that all in-service audiograms, including the January 1988 separation audiogram, have been reviewed and considered in rendering an opinion.

Following a review of the record, the examiner should offer an opinion on the following:

(A) Did the Veteran have right ear hearing loss which existed prior to military service?

(B)  If the answer to A is yes, is there clear and unmistakable evidence that the Veteran's pre-existing right ear hearing loss did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? 

If there was an increase in severity of the Veteran's right ear hearing loss during service, was that increase clearly and unmistakably due to the natural progress of the disease?

The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of disability present before the onset of the aggravation.

(C) If the answer to A is no, is it at least as likely as not (50 percent probability or greater) that the Veteran's right ear hearing loss had its onset in service, or is otherwise related to any incident of service, to include his acknowledged in-service noise exposure as a result of his service as an electrical and mechanical repairman in the Navy? Or, is it at least as likely as not (50 percent probability or greater) that the Veteran's right ear hearing loss manifested within one year of his service discharge in January 1988, i.e., by January 1989? If so, please describe the manifestations

(D) Is it at least as likely as not (50 percent probability or greater) that the Veteran's left ear hearing loss had its onset in service, or is otherwise related to any incident of service, to include his acknowledged in-service noise exposure as a result of his service as an electrical and mechanical repairman in the Navy? Or, is it at least as likely as not (50 percent probability or greater) that the Veteran's left ear hearing loss manifested within one year of his service discharge in January 1988, i.e., by January 1989? If so, please describe the manifestations. 

All opinions expressed by the examiner should be accompanied by a complete rationale.

If the February 2015 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

2. Then review the claims file.  If any directive specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268   (1998).

3. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2016).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs