Citation Nr: 1759960 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 08-01 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for allergic rhinitis. ORDER 1. Entitlement to service connection for asthma is denied. 2. Entitlement to service connection for allergic rhinitis is denied. FINDINGS OF FACT 1. Though the Veteran's asthma was not noted upon entry into active duty service, clear and unmistakable evidence shows that asthma preexisted active duty service and clearly and unmistakably did not worsen beyond its natural course during service. 2. Though the Veteran's allergic rhinitis was not noted upon entry into active duty service, clear and unmistakable evidence shows that allergic rhinitis preexisted active duty service and clearly and unmistakably did not worsen beyond its natural course during service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. § 101, 1110, 1111, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.305 (2017). 2. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C. § 101, 1110, 1111, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to November 1997 and from May 1998 to October 1998, with additional service in the U.S. Marine Corps Reserve from November 1997 to May 1998 and from July 1998 to August 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2007 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2010, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing. While the matter was pending, the VLJ who conducted this hearing retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. As the VLJ who conducted the February 2010 Board hearing has since retired, she cannot participate in the adjudication of the Veteran's claim. In a May 2017 letter, VA informed the Veteran of his right to an additional hearing before another VLJ. However, the Veteran has not replied, or communicated his desire to have another hearing before the Board. Therefore, the Board will proceed with addressing the appeal. The issues were remanded for further development by the Board in October 2016. Specifically, the Board instructed the RO to obtain VA medical examinations and opinions on the claims on appeal. A review of the claims folder reflects the RO has substantially complied with the October 2016 remand instructions by obtaining medical examinations/opinions in December 2016 and subsequently issuing a supplemental statement of the case (SSOC). The Board notes that the October 2016 remand also remanded the issue of entitlement to service connection for a skin disorder. The claims folder reflects that during the pendency of the appeal, in a February 2017 rating decision, the RO granted the Veteran's claim. As such, the issue of entitlement to service connection for a skin disorder is no longer before the Board. Additionally, the October 2016 remand also remanded the issue of entitlement to an initial rating in excess of 50 percent disabling for adjustment disorder. The Board instructed the RO to issue a statement of the case (SOC) on the issue and notify the Veteran the need to timely file a substantive appeal to perfect his appeal on this issue. The Board issued the Veteran an SOC in March 2017. The SOC explained the Veteran's rights on appeal and the steps needed to perfect his appeal for the issue of entitlement to an initial rating in excess of 50 percent disabling for adjustment disorder. A review of the claims folder reflects that the Veteran has yet to submit a substantive appeal. As such, the claim has not been perfected as it not before the Board. The issue of entitlement to service connection for post-traumatic stress disorder (PTSD) has been raised by the record in a June 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to service connection for asthma. The Veteran contends that he has asthma related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has asthma that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has asthma related to, or aggravated by, his military service. The Veteran asserts that he was exposed to chemical propellants, dust, and diesel fumes in the course of his duties as an artilleryman and motor vehicle operator in the Marine Corps Reserve. The Veteran's service treatment records reflect in-service pneumonia and difficulty running. Private treatment records show that during his initial new patient appointment in February 2001, the Veteran reported having bronchitis every year since he was a child; he had pneumonia in the past. In the August 2001 report of medical history, the Veteran reported having blood when coughing, asthma, and shortness of breath. He also reported having fatigue since having pneumonia in 1997. The Veteran was afforded a VA medical examination in December 2016. The examiner opined that the Veteran's claimed asthma condition, clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted the Veteran' s history of treatment and symptoms to include chronic cough, night awakening, pneumonia, respiratory infections, shortness of breath and tightness, nasal congestion, stuffiness, and mouth breath breathing among others. The examiner further noted the Veteran's concession of experiencing what he believed to be bronchitis every year since childhood. The examiner explained that what the Veteran thought was a yearly occurrence of bronchitis was more likely than not exacerbated asthma triggered or caused with respiratory infection. The examiner continued to explain that chronic dry cough is one of the most frequent symptoms of asthma. In explaining that the Veteran's asthma was not permanently aggravated beyond its natural progression by military service; the examiner noted pulmonary function tests (PFT) and chest x-rays, which were normal but indicated the Veteran with mild asthma. Generally, for veterans, there is a presumption of sound condition upon entrance into service unless a defect is "noted" on the entrance examination; and a presumption of aggravation of a preexisting condition if the preexisting condition worsens in severity during service. Clear and unmistakable evidence is required to rebut the presumption of aggravation, to include a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1111, 1153 (West 2014); 38 C.F.R. § 3.304 (b), 3.306 (2017). Here, the Veteran was not "noted" upon entrance into the military with asthma. However, based on the Veteran's medical history, his statements, treatment records, and the December 2016 VA medical examination, the Board finds that there exist clear and unmistakable evidence to rebut the presumption of sound condition upon entrance. Additionally, the objective competent medical evidence reflects that the Veteran's military service did not aggravate or increase his asthma beyond its natural progression. As such, entitlement to service connection for asthma is not warranted. Entitlement to service connection for allergic rhinitis. The Veteran contends that he has allergic rhinitis related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The question for the Board is whether the Veteran has allergic rhinitis that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has allergic rhinitis related to, or aggravated by, his military service. The Veteran asserts that he was exposed to chemical propellants, dust, and diesel fumes in the course of his duties as an artilleryman and motor vehicle operator in the Marine Corps Reserve. The Veteran's service treatment records reflect in-service pneumonia and difficulty running. Private treatment records show that during his initial new patient appointment in February 2001, the Veteran reported having bronchitis every year since he was a child; he had pneumonia in the past. In the August 2001 report of medical history, the Veteran reported having blood when coughing, asthma, and shortness of breath. He also reported having fatigue since having pneumonia in 1997. The Veteran was afforded a VA medical examination in December 2016. The examiner opined that the Veteran's claimed allergic rhinitis, clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner noted the Veteran' s history of treatment and symptoms to include chronic cough, night awakening, pneumonia, respiratory infections, shortness of breath and tightness, nasal congestion, stuffiness, and mouth breath breathing among others. The examiner further noted the Veteran's concession of experiencing what he believed to be bronchitis every year since childhood. The examiner further noted that chronic dry cough is also the most frequent symptom related to allergic rhinitis explaining it is caused by post nasal drip caused by allergic rhinitis. In explaining that the Veteran's allergic rhinitis was not permanently aggravated beyond its natural progression by military service; the examiner noted the Veteran with mild allergic rhinitis with normal nostrils upon physical examination. Generally, for veterans, there is a presumption of sound condition upon entrance into service unless a defect is "noted" on the entrance examination; and a presumption of aggravation of a preexisting condition if the preexisting condition worsens in severity during service. Clear and unmistakable evidence is required to rebut the presumption of aggravation, to include a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1111, 1153 (West 2014); 38 C.F.R. § 3.304 (b), 3.306 (2017). Here, the Veteran was not "noted" upon entrance into the military with allergic rhinitis. However, based on the Veteran's medical history, his statements, treatment records, and the December 2016 VA medical examination, the Board finds that there exist clear and unmistakable evidence to rebut the presumption of sound condition upon entrance. Additionally, the objective competent medical evidence reflects that the Veteran's military service did not aggravate or increase his rhinitis beyond its natural progression. As such, entitlement to service connection for allergic rhinitis is not warranted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Department of Veterans Affairs