Citation Nr: 18150883 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-42 037 DATE: November 16, 2018 ORDER 1. Entitlement to service connection for allergic rhinitis is granted. 2. Entitlement to service connection for migraines, to include as secondary to allergic rhinitis, is granted. REMANDED 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for an eye disability is remanded. 3. Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. The Veteran’s preexisting allergic rhinitis was aggravated during service. 2. There is a medical opinion of record that concludes this Veteran’s migraines were caused by her service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria to establish service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2017). 2. The criteria for service connection for migraines, on a secondary basis, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to September 2011. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from April 2014 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Providence, Rhode Island and Philadelphia, Pennsylvania. Jurisdiction is currently with the RO in Newark, New Jersey. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). Moreover, 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. § 1111 (2012). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting 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. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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. C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for allergic rhinitis is granted. The Veteran seeks service connection for allergic rhinitis, which she contends was a preexisting condition that was aggravated during service. The Veteran’s entrance physical indicates that she reported sinusitis and used an inhaler for allergies prior to active duty. See Entrance Examination dated May 2003. Thus, since the pre-service symptoms were noted, soundness at service entrance is not shown, and the rules concerning the presumption of soundness are inapplicable in this case. Post-service VA treatment records indicate that the Veteran has been prescribed daily medication to treat her allergic rhinitis. See VA Treatment Record dated August 4, 2015. In a December 2016 private medical opinion, an advanced practice registered nurse opined that it was at least as likely as not that the Veteran’s allergic rhinitis was aggravated during active duty. The nurse practitioner cited the Veteran’s medical history, and noted that she began to take allergy medication while on active duty. Thus, she concluded that the aggravation of the allergic rhinitis was demonstrated by the Veteran’s need for prescription medication after enlistment, which was not used prior to active duty. Since prescription medications were not used prior to service, this record shows an increase in the severity of the allergic rhinitis during service. This should be service connected unless there is clear and unmistakable evidence that this increase in severity was due to the natural progression of the disability. 38 C.F.R. § 3.306. In this regard, a September 2016 VA examiner concluded that the condition was not aggravated during service, but failed to provide a rationale in support of this opinion. Thus, the December 2016 private opinion is the only probative opinion of record and precludes a finding that this record clearly and unmistakably establishes the increase in severity was due to natural progression. Accordingly, service connection for allergic rhinitis is granted. 2. Entitlement to service connection for migraines, secondary to allergic rhinitis, is granted. The Veteran contends that her migraines are related to her allergic rhinitis, for which service connection has been granted herein. There is no dispute that she has been diagnosed with migraines. See VA Examination Report dated August 2016. Thus, the remaining question is whether the Veteran’s allergic rhinitis caused, or aggravated, the claimed disability. In the December 2016 private opinion, a nurse practitioner opined that the Veteran’s migraine condition was at least as likely as not related to her allergic rhinitis. She cited to medical literature supporting a nexus between the two conditions, including studies which found that there was a high prevalence of migraine headaches in individuals with allergic rhinitis. These studies cited the presence of histamine as a common factor of both conditions. The Board finds that this opinion reflects a thorough review of the claims file, including the Veteran’s medical history and her lay statements, and contains a sufficient rationale to support its conclusion. It also cites to medical literature which demonstrates that individuals with allergic rhinitis tend to experience migraine headaches more often than those without this condition, possibly due to the involvement of histamine. Therefore, it is afforded probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board is persuaded by the December 2016 private medical opinion, and finds it to be the most probative medical opinion of record. Thus, the benefit sought on appeal is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran last underwent a VA examination to determine the nature of her right shoulder disability in March 2014. The examiner indicated that her in-service shoulder pain had resolved. However, a VA treatment provider later noted that the Veteran likely had tendinosis in the right shoulder, based upon positive impingement signs. See VA Treatment Record dated September 3, 2015. Given that the evidence of record suggests that the Veteran may, in fact, have a current right shoulder disability, the Board remands this matter for a VA examination for clarification as to whether the Veteran has a current diagnosis of a right shoulder disability, and whether it may be due to service. 2. Entitlement to service connection for an eye disability is remanded. The Veteran last underwent a VA examination to determine the nature of her eye disability in March 2014. The examiner indicated that she had suspected glaucoma, but did not provide an opinion regarding the etiology of this condition. VA treatment records have since noted diagnoses of simple myopia, presbyopia, suspected glaucoma, and conjunctivitis. See VA Treatment Records dated July 7, 2015 and December 5, 2016. Given that the March 2014 examination report was unclear regarding whether the Veteran had a current eye disability and failed to provide a nexus opinion, the Board remands this matter for an additional VA examination for clarification as to whether the Veteran has a current diagnosis of an eye disability, and whether it may be due to service. 3. Entitlement to service connection for a bilateral foot disability is remanded. A medical opinion regarding whether a preexisting foot condition was aggravated is of record, but the examiner did not include an opinion regarding direct service connection. Notably, VA treatment records indicate that the Veteran’s current foot disability is the result of her in-service surgeries. See VA Treatment Records dated March 30, 2015, August 28, 2015, and November 21, 2016. Therefore, the Board remands this matter for an addendum opinion regarding whether the Veteran’s bilateral foot disability may be due to the surgeries performed during service. The matters are REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to her appeal with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate medical professional for an opinion as to the etiology of any diagnosed right shoulder disability. The record should be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to review all pertinent records associated with the claims file, particularly the post-service treatment records and the Veteran’s lay statements. The VA examiner’s opinion should address the following: a) Identify any diagnoses related to the right shoulder. b) Whether it is at least as likely as not that any diagnosed right shoulder disability had its onset in service or is otherwise related to an in-service disease or injury. All opinions provided should be thoroughly explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Schedule the Veteran for a VA examination with an appropriate medical professional for an opinion as to the etiology of any diagnosed eye disability. The record should be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is requested to review all pertinent records associated with the claims file, particularly the post-service treatment records and the Veteran’s lay statements. The VA examiner’s opinion should address the following: a) Identify any diagnoses of an eye disability. b) Whether it is at least as likely as not that any diagnosed eye disability had its onset in service or is otherwise related to an in-service disease or injury. The examiner is requested to review all pertinent records associated with the claims file. All opinions provided should be thoroughly explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Forward the Veteran’s claims file to an appropriate examiner to provide a supplemental opinion to address the issue of service connection for a bilateral foot disability. The record should be made available to and be reviewed by the examiner. It is left to the examiner’s discretion whether to reexamine the Veteran. The VA examiner’s opinion should address the following: a) Identify any diagnoses related to the bilateral feet. b) Whether it is at least as likely as not that any diagnosed bilateral foot disability had its onset in service or is otherwise related to an in-service disease or injury, to include the surgeries performed during service. The examiner is requested to review all pertinent records associated with the claims file. All opinions provided should be thoroughly explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel