Citation Nr: 1803706 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-26 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for allergic rhinitis (hay fever). 2. Entitlement to service connection for sleep apnea, as secondary to allergic rhinitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from June 25, 1960 to December 16, 1960. It appears that he also had subsequent periods of ACDUTRA from July 15 to July 30, 1961; August 12 to August 25, 1962; July 30 to August 16, 1963; July 30 to August 15, 1964; and July 17 to August 1, 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2010 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded the claim of entitlement to service connection for allergic rhinitis in January 2013 and August 2014 for further development. Subsequently, in August 2015, the Board denied service connection for allergic rhinitis, sinusitis, and sleep apnea. The appellant appealed the Board's August 2015 decision in regard to his allergic rhinitis and sleep apnea to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a March 2017 memorandum decision, the Court vacated that part of the August 2015 Board decision which denied service connection for allergic rhinitis. The Court then remanded both issues for further action in accordance with its decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As mentioned above, CAVC vacated, in part, the Board's denial for service connection for allergic rhinitis. A remand is required for further development. On VA examination in October 2014, in the Medical History section, the examiner noted the appellant's statements as follows: "Veteran states he was first tested for allergies at watson clinic about 17-18 years old prior to service he was diagnosed as allergic to pollen, grass seed, animal fur, pollen to most trees and rag weed. He states he had the skin prick test. Veteran states he disclosed that he had hay fever/allergies on his entrance exam. Veteran states while stationed in Fort Jackson, he had a severe attack of his allergies, that he describes as raw nasal passages, sore throat, sneezing, watery eyes, clear runny nose. He states this attack lasted for a week, then another episode occurred shortly after that lasted 2-3 weeks. He states once he went to FORT Gordon then the hay fever/allergies improved because the weather was cold, he states he used OTC medications from that point. Veteran states he came back home and after 4-5 years his symptoms improved over time. Then he states since he has gotten older it is affecting him more. Veteran states his symptoms of his allergies were the same prior to service as during service. Veteran states he has taken Allergy shots in the past in the mid 1960's." In concluding that the appellant's hay fever was not aggravated beyond its natural progression during ACDUTRA, the examiner reasoned, in part, that "Per the Veteran's Statement on examination today he had allergy symptoms prior to service that he states were the same after service." CAVC determined that the October 2014 VA examination, which the Board relied on to deny the claim, was inadequate. Specifically, CAVC stated that the October 2014 VA examiner mentioned the appellant's lay statements as to experiencing worsened hay fever symptoms during and for many years after reserve service, but it is unclear how this statement factored into her opinion. The CAVC noted that the Board should consider, if necessary, whether a medical expert is required to ascertain whether the appellant's statements that he experienced many years of worsened hay fever symptoms after service constitutes permanent worsening. Upon review of the October 2014 VA examination report, the Board notes that the appellant did not specifically describe the type and severity of his allergy symptoms prior to service. He stated only that he had been diagnosed with hay fever when he was 17 or 18 years old. He went on to describe in detail two allergy attacks that he experienced at Fort Jackson. Then he stated that his allergies improved when he went to Fort Gordon because the weather was cold. Next, he stated that he returned home and after four to five years his symptoms improved over time. Finally, he said that the symptoms of his allergies were the same prior to service as during service. The Board construes this history, as reported by the Veteran, to suggest that the allergy attacks he experienced during service were the same as any attacks that he had experienced before service. With respect to his statement that he returned home and after four to five years his symptoms improved over time, this would suggest that his allergy symptoms, which were the same before and during service, were still the same when he separated from service and then gradually improved over the next four to five years, as opposed to worsened in the years after service. In any event, a medical opinion should be obtained on remand to determine whether the appellant's hay fever was aggravated beyond its natural progression during his active duty training. CAVC also noted that the Board appeared to have accepted seemingly incompatible views of the facts: after noting that the appellant stated that allergen exposure during ACDUTRA aggravated his symptoms, and finding him competent and credible to so testify, the Board in its denial of benefits relied on the October 2014 opinion that disregarded his statements in this regard. In the August 2015 decision, the Board did note the appellant's assertion that, during the summer months of his eight weeks of basic training at Fort Jackson, he was exposed to allergens, including pollen, dust, grass and plants, that severely aggravated his condition. However, the Board found him competent and credible to testify only as to whether or not he "experienced symptoms of allergic rhinitis" while on ACDUTRA, as opposed to whether allergen exposure during ACDUTRA "aggravated" his symptoms. In essence, the appellant is competent to describe the types of symptoms he experienced before, during, and after service, and is found to be credible as to what he has thus far reported. Finally, CAVC remanded the claim for service connection for sleep apnea as intertwined with the claim for service connection for allergic rhinitis, since the appellant asserted that it was secondary to his allergic rhinitis. Therefore, both claims must be remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the appellant for a VA examination by a doctor who is board-certified in allergy and immunology. The claims folder should be made available to the doctor in conjunction with the examination and the report should reflect that such review occurred. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The doctor must provide an opinion as to whether the appellant's hay fever was aggravated beyond its natural progression during his active duty training. The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In providing his/her opinion, the doctor should consider the following: o The appellant served on ACDUTRA from June 25, 1960 to December 16, 1960; July 15 to July 30, 1961; August 12 to August 25, 1962; July 30 to August 16, 1963; July 30 to August 15, 1964; and July 17 to August 1, 1965. o It is conceded that the appellant's hay fever existed prior to his periods of ACDUTRA (i.e., prior to June 25, 1960). o The service treatment records include an April 1960 entrance examination noting that the appellant had one hay fever occurrence at the start of summer but it had never been disabling; on a November 28, 1960, separation examination form, the appellant indicated that he had experienced or currently was experiencing hay fever, but the examination report of that date found no illnesses; in December 1960, the appellant averred that he experienced no change in his physical condition since his November 1960 examination; the appellant averred in July 1961, August 1962, July 1963, August 1964, and July 1965 that during his respective active duty for training there had been no change in his physical condition and he was not suffering any disability, defect, or illness not present at the beginning of duty; and a February 1965 medical record indicated that he had mild seasonal hay fever and had been treated for it in the past five years. o The appellant asserts that during eight weeks of basic training at Fort Jackson, South Carolina, he was allergic to the pollinated trees, dust, grass, ragweed, and orange blossoms on the installation. o An April 2011 letter from Dr. Anantkumar Shah indicated that the appellant experienced intermittent episodes of hay fever and that he had been treated by Dr. Shah since October 2010. o During an October 2014 VA examination, the appellant stated that he was first tested for allergies when he was about 17-18 years old (prior to service) and was diagnosed as allergic to pollen, grass, seed, animal fur, pollen to most trees, and rag weed. He stated that while stationed in Fort Jackson, he had a severe attack of his allergies, that he described as raw nasal passages, sore throat, sneezing, watery eyes, clear runny nose. He stated that this attack lasted for a week, then another episode occurred shortly after that lasted 2-3 weeks. He stated that once he went to Fort Gordon the hay fever allergies improved because the weather was cold, and that he has used over-the-counter medications from that point. He further stated he came back home and after 4-5 years his symptoms improved over time. He then stated that since he had gotten older it was affecting him more. Finally, he stated that he had taken allergy shots in the past, in the mid 1960's. o The absence of documentation of complaints or treatment of hay fever symptoms in the service treatment records cannot, standing alone, serve as the basis for a negative opinion regarding aggravation of the appellant's hay fever during service. The appellant is competent to state that he had experienced hay fever symptoms during service and is found to be credible in this regard. The examiner must provide a rationale for all opinions provided. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 2. Finally, the claims on appeal should be readjudicated. If the benefits sought on appeal are not granted, the appellant and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).