Citation Nr: 1804101 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-45 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for allergies and a respiratory disability. 2. Entitlement to service connection for allergies and a respiratory disability, to include bronchitis, pharyngitis, and allergic rhinitis. 3. Entitlement to service connection for a vision disability, claimed as blurry vision. 4. Entitlement to service connection for headaches, to include as secondary to a vision disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction was subsequently transferred to the Houston, Texas RO. On October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for allergies and a respiratory disability, a vision disability, and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In the most recently unappealed decision, dated in December 2013, the RO determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for allergies and a respiratory condition. 2. The evidence received since the RO's December 2013 decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied service connection for allergies and a respiratory condition, is final. 38 U.S.C. § 7105 (2012), 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the RO's December 2013 decision; the claim for service connection for allergies and a respiratory condition, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran most recently filed a request to reopen his claim for entitlement to service connection for allergies and a respiratory disability in May 2014, to include bronchitis, pharyngitis, and allergic rhinitis. At the time of his last final denial, evidence of record included service treatment records, VA treatment records, and a VA examination report. Since the last final denial, evidence added to the record includes additional VA treatment records and an October 2017 hearing transcript. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for allergies and a respiratory disability is reopened. ORDER New and material evidence to reopen a claim of entitlement to service connection for allergies and a respiratory disability has been received, to this extent, the appeal is granted. REMAND The Veteran contends that he has allergies and a respiratory disability, to include bronchitis, pharyngitis, and allergic rhinitis that are related to his service. He also contends that he has headaches and blurred vision that are related to his service. With regard to headaches, the Veteran testified that his headaches were related to acoustic trauma during service from generators and the constant pounding and noise. With regard to a vision disability, he testified that in-service exposure to chemicals caused a burning sensation in his eyes. He wore goggles and face shields, but they did not prevent fumes from penetrating his eyes. He also testified that the exposure caused headaches. With regard to a respiratory disability, he testified that it was related to exposure to cleaning maintaining various equipment during service as an Airman second during service. He testified that there was a toxic cleaning substance known as MEK which was used daily to clean diesel fuel off of generators. He testified that he inhaled the fumes because he wore a face shield and not a mask. He also testified that the experienced allergies year round. The service treatment records indicate complaints of blurred vision with occasional headaches in November 1957. In January 1958, he was prescribed glasses. A January 1958 eye clinic note indicates a diagnosis of frontal headache. In October 1958, he was referred to the ophthalmology clinic with a suspected history of allergic conjunctivitis since early childhood. An October 1958 allergy clinic report from an eye clinic indicates a history of allergic conjunctivitis, rhinitis, and sinusitis. It was noted that he was referred from the ophthalmology clinic for allergic rhinitis and conjunctivitis. He presented with a history of sinus disease since early childhood for which his sinuses were drained and flushed. He had no subsequent similar difficulty. However, since the age of 8 or 9 years, he had almost daily difficulty with paroxysmal sneezing, particularly on arising and mild rhinorrhea. In the past one year, he experienced conjunctival burning sensation, profuse lacrimation, and visual blurring on a continual basis. However, his history was negative for asthma. Upon examination, the impression was allergic rhinitis, chronic, not aggravated by service, due to dust, mixed weed, and tree pollens. A November 1958 allergy skin test was positive for mountain cedar, pecan, Russian thistle, ragweed, amaranth, privet and dust. He was diagnosed with allergic rhinitis "not aggravated by service due to dust, mixed weed, and tree pollens." On December 1959 separation examination, there was no significant illness or injury diagnosed and no evidence of aggravation of a pre-existing condition. He also denied having recurrent headaches. Post service, VA treatment records include a problem list which indicates a diagnosis of asthma and allergic rhinitis since August 2014. Private treatment records include asthma and allergy center records which include a March 2007 letter from the Veteran's treating physician Dr. K.B.B. which indicates diagnoses of rhinitis, sinusitis, and anosmia. Eye clinic records dated in October 2012 indicate diagnoses of conjunctivitis allergic, blurry vision and spots, dry eye syndrome, bilateral superficial keratitis and bilateral allergic conjunctivitis. Additional treatment records indicate diagnoses of glaucoma, bilateral allergic dermatitis, bilateral cortical cataract, bilateral pseudophakia, and dry eyes. A January 2014 report and X-ray examination indicate diagnoses of interstitial bronchitis and asthma. An October 2015 report indicates a diagnosis of restrictive lung disease and a December 2015 report indicates diagnoses of COPD and mild asthma. With regard to the claim for service connection for allergies and a respiratory disorder, on March 2016 VA respiratory conditions Disability Benefits Questionnaire (DBQ) examination, the VA examiner diagnosed asthma and COPD since 2003. On VA sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx DBQ examination, the examiner diagnosed allergic rhinitis which pre-existed service. In a March 2016 medical opinion, the VA examiner opined that the allergic rhinitis which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner also opined that the Veteran's claimed asthma was not incurred in or caused by the claimed in-service injury, even, or illness and further opined that allergic rhinitis does not cause asthma, but can trigger respiratory symptoms to the condition. However, as the examiner failed to address whether sinusitis or anosmia also pre-existed the Veteran's service and was aggravated during service, or whether any respiratory disorder other than asthma was related to the Veteran's service, an additional examination is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the claim for service connection for headaches and a vision disability, since the STRs reflect complaints of blurred vision with occasional headaches and allergic conjunctivitis "since early childhood" and post-service treatment of additional vision problems, a VA examination and medical opinion should be obtained. On remand, any additional VA and private treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: (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. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain, any outstanding private treatment records related to his allergies, respiratory disability, and vision disability. 2. Obtain all outstanding VA medical records related to the Veteran's allergies, respiratory disability, and vision disability, including those from the Audie L. Murphy Memorial VAMC, dated from April 2017 to the present. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all record he believes to be pertinent). 3. Schedule the Veteran for a VA examination by an examiner other than the March 2016 VA examiner, which addresses the nature and etiology of any allergies (including allergic rhinitis, sinusitis, and anosmia) and any respiratory disability. All indicated tests and studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. The examiner should provide the following opinions: With regard to allergies (a) Please opine as to whether there is clear and unmistakable (undebatable) evidence to show that any allergy, to include allergic rhinitis, sinusitis, and anosmia, pre-existed service. (b) If the examiner determines that there is clear and unmistakable evidence that an allergy pre-existed service, whether there is clear and unmistakable evidence that the pre-existing disability did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability. (c) If there is not clear and unmistakable evidence that any allergies, including allergic rhinitis, sinusitis, and anosmia pre-existed service, or if there is not clear and unmistakable evidence that a pre-existing allergy was not worsened beyond its natural progression by service, whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently diagnosed allergy is related to the Veteran's service, including as due to exposure to toxic chemicals and fumes. With regard to a respiratory disability (a) Is it at least as likely as not (50 percent or more probability) that any current respiratory disability, had its onset in or is etiologically-related to the Veteran's active duty service, including as due to exposure to toxic chemicals and fumes? (b) If the answer to part (a) above is "no," and the Veteran's allergies have been related to his service, is it at least as likely as not (50 percent probability or more) that any currently-diagnosed respiratory disability is (a) proximately due to or the result of the Veteran's service-connected allergies, or (b) aggravated or permanently worsened by his service-connected allergies. If it is determined that the respiratory disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Note: The term "aggravated" 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. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. 4. Schedule the Veteran for a VA examination to assess the nature and etiology of any currently-diagnosed vision and headache disabilities. The claims file should be made available to the examiner. A review of this remand is requested. All appropriate testing should be conducted. The examiner should provide the following opinions: With regard to a vision disability (a) Is there any diagnosed vision disability that is a congenital defect or a congenital disease? (b) If the answer to part (a) above is "no," is it at least as likely as not (probability of 50 percent or greater) that any vision disability had its onset during the Veteran's service or is otherwise causally related to his service, including as due to exposure to toxic chemicals and fumes? (c) If the answer to part (a) above is "yes" (i.e., pseudophakia is considered a congenital defect), please opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect? With regard to a headache disability (a) Is it at least as likely as not (50 percent or more probability) that any current headache disability, had its onset in or is etiologically-related to the Veteran's active duty service, including as due to exposure to toxic chemicals and fumes? (b) If the answer to part (a) above is "no," and the Veteran's vision disability has been related to his service, is it at least as likely as not (50 percent probability or more) that any currently-diagnosed headache disability is (a) proximately due to or the result of the Veteran's service-connected vision disability, or (b) aggravated or permanently worsened by his service-connected vision disability. If it is determined that the respiratory disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset. The report of examination should include the complete rationale for all opinions expressed. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Note: The term "aggravated" 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. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs