Citation Nr: 18152834 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-25 610 DATE: November 27, 2018 ORDER Entitlement to service connection for a chronic disability of the throat, claimed as throat irritation, is denied. Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for a chronic respiratory disability, to include restrictive airway dysfunction, is denied. FINDINGS OF FACT 1. A chronic respiratory disorder was not demonstrated during active duty service, and there is no competent evidence linking such a disorder to service. 2. The Veteran’s irritated throat is a symptom of a respiratory disorder for which service connection has not been established; it is not a separate and distinct disability for which service connection can be established. 3. The preponderance of the evidence is against finding that allergic rhinitis was demonstrated during or is related to the Veteran’s active duty service. CONCLUSIONS OF LAW 1. A chronic respiratory disorder, to include a disorder manifested by an irritated throat, was not incurred or aggravated inservice. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 2. Allergic rhinitis was not incurred or aggravated in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1998 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. With respect to the Veteran’s claim 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to service connection for a disability, a Veteran must show: (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 the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A respiratory disorder to include a disorder throat irritation The Veteran is already service connected for a loss of the sense of smell. The Veteran contends that he has a chronic respiratory condition, to include a disorder manifested by an irritated throat, due to inservice chemical exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the appellant does complain of an irritated throat, an irritated throat is merely a symptom. Standing alone the evidence does not show that this complaint represents a diagnosed disability. Moreover, the preponderance of the evidence is against finding that the appellant has a current diagnosis of any chronic respiratory disability and has not had such a disorder at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 1131. Without evidence of a current respiratory disorder, to include such a disorder manifested by an irritated throat, there is no basis to grant service connection. Brammer v. Brown, 3 Vet. App. 223 (1992) (Congress specifically limits entitlement for service connected compensation to those cases where an inservice disease or injury resulted in a disability. In the absence of proof of a present disability there can be no valid claim.) A review of the service treatment records reveals that in November 1999 the claimant was seen following an occupational exposure to a respiratory irritant. No pertinent findings, however, were made. A respiratory disorder was not diagnosed. The appellant’s throat, lungs and chest were clinically evaluated as normal at his December 2000 separation examination. The Veteran was provided a VA examination in June 2012 following which he was diagnosed with allergic rhinitis. No opinion was offered as to the etiology of this disorder. While the appellant was given a pulmonary function test, a respiratory disorder was not diagnosed. The Veteran was given a pulmonary function test in March 2015 which revealed no acute respiratory illness. The April 2015 VA examiner evaluated the Veteran and determined that a diagnosis of a respiratory condition was not in order. Another examiner from July 2015 determined that there was no current respiratory condition and that as a result, any claimed condition was less likely than not incurred in or caused by service. While private practitioner Dr. K.M. stated in an August 2013 letter that the Veteran had a restrictive airway dysfunction syndrome, there is no indication that K.M. performed any diagnostic tests to confirm the presence of restrictive airway dysfunction syndrome. Even assuming the accuracy of the diagnosis the statement is based on the Veteran’s self-reported medical history, which is inconsistent with treatment records that show no complaints of respiratory issues in service along with no diagnosis of any respiratory condition. Consequently, the Board assigns more probative weight to the VA examiner’s findings, which cited to clinical test results when providing their rational. The Board has considered the Veteran’s arguments in favor of service connection. However, neither the Veteran nor his representative possess the requisite training or expertise to offer a competent opinion as to the cause of, or to diagnose a respiratory condition or disability, given the complex medical issues involved. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the record lacks a medical opinion linking any respiratory condition to the Veteran’s service. Accordingly, as the preponderance of the evidence is against the claim, service connection for a respiratory disorder, to include any disorder manifested by throat irritation, is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Allergic rhinitis The Veteran contends that allergic rhinitis is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while it has been noted that the Veteran has several mainly seasonal allergens, the preponderance of the evidence is against finding that allergic rhinitis began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. § 3.303(a), (d). The Veteran has a current diagnosis of an allergy disorder, and as noted, a February 2012 VA examination diagnosed allergic rhinitis. The February 2012 examination did not, however, offer an opinion addressing the etiology of allergic rhinitis. A December 2011 private practitioner [Dr. G.L.] also diagnosed the Veteran with allergic rhinitis in 2011. No statement has been submitted connecting the Veteran’s current diagnoses of allergic rhinitis to his military service. The evidence preponderates against finding that a chronic disorder due to allergies which was incurred during the Veteran’s service or is related to any disease or injury in service. First, the Veteran’s assertion that his allergies began in service is not corroborated by the service treatment records. The Veteran’s service treatment records are silent as to any diagnosis or complaint of any allergic disorder to include allergic rhinitis. The Veteran’s separation examination and report of medical history provides no indication of allergies. The appellant’s nose, mouth, throat, and sinuses were evaluated as normal. On the Report of Medical History, the Veteran checked “no” for ear, nose, or throat trouble, frequent colds, sinusitis, or hay fever. The Board therefore finds that the Veteran, while competent to report on receiving medical treatment, has not provided credible statements regarding treatment for allergies in service, as these statements are directly contradicted by the service treatment records. It is also notable that there is absolutely no evidence linking any disorder manifested by allergies, to include allergic rhinitis, to service. Hence, the claim is denied. In reaching this conclusion, the Board considered the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the Federal Circuit determined that the Board had erred by finding that a claimant’s report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case is clearly distinguishable as the Board is not relying merely upon a general absence of complaints during service. Instead, the Board is relying on normal in-service examination findings and the Veteran’s specific in-service denials of relevant symptoms at the time of his separation from service. Further, while the Veteran believes his current allergic rhinitis is related to his in service chemical exposure, the preponderance of the evidence, however, weighs against any finding that allergic rhinitis was present inservice, or is due to service. The Veteran is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau. As the preponderance of the probative and competent evidence weighs against the claim the benefit sought is denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel