Citation Nr: 18157651 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-63 926 DATE: December 13, 2018 REMANDED Entitlement to service connection for rhinitis (originally claimed as allergies) is remanded. Entitlement to service connection for sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1982 to September 2003. The Veteran seeks service connection for rhinitis (originally claimed as allergies) and sinusitis. He avers that he entered active duty with allergic rhinitis and sinusitis and that they were aggravated therein as evidenced by his treatment for upper respiratory infections, sinusitis, and allergic rhinitis. The Board initially observes that because the Veteran’s ear, nose, mouth and throat were found normal at entrance into active service in July 1982, the presumption of soundness applies. It can only be rebutted by evidence establishing that the disease or injury clearly and unmistakably existed prior to service and (italics added for emphasis) clearly and unmistakably underwent no permanent increase in severity as a result of active duty. See 38 U.S.C. § 1111, 1137; 38 C.F.R. § 3.304. During service, the Veteran was seen on numerous occasions for upper respiratory infections, allergic rhinitis; and sinusitis. An April 2003 Report of Medical Assessment does not contain any subjective complaints or clinical findings referable to sinusitis and/or allergies. At that time, the Veteran indicated that he had problems with his skin and upper back. VA examined the Veteran to determine the etiology of his allergic rhinitis and sinusitis in September 2014. The VA examiner diagnosed the Veteran has having allergic rhinitis and chronic sinusitis. During the examination, the examiner noted that the Veteran had provided a history of having had allergies throughout his life, to include prior to his entrance into service, when he was evaluated by a private physician in June 2012. The VA examiner noted that the Veteran reported being allergic to Penicillin, fish and crabs and that he had developed environmental allergies while stationed in Virginia. The examiner also noted that the Veteran had a 28-year of history of smoking and symptoms of mild allergic rhinitis. Regarding the Veteran’s diagnosis of allergic rhinitis, after a review of the record, to include the Veteran’s service treatment records, the VA examiner opined that it was less likely than not (less than 50 percent probability) that it had been caused or incurred in service. The VA examiner reasoned that the Veteran had a pre-existing condition of allergies and hay fever prior to military service that became chronic during his years of service and a continual habit of smoking. The examiner noted that the Veteran did not [at that time] demonstrate any physical condition that he was suffering from allergies. Thus, it was the VA examiner’s opinion that the Veteran’s history of allergies and smoking were a major contribution to his illness and that they had not been caused or aggravated by his military service. Id at page (pg.) 9)). Concerning the Veteran’s chronic sinusitis, the VA examiner opined that it was less likely than not (less than 50 percent probability) that it had been caused or incurred in service. The VA examiner reasoned that the Veteran had a “history of chronic sinusitis” and during his service years, he suffered from chronic sinusitis due to the work environment. However, according to the VA examiner, the Veteran had a pre-existing history of allergies and history of smoking for 28 years, and did not currently (then) have sinusitis. Id. at pg. 12. The examiner, however, did not state whether there was clear and unmistakable evidence that the Veteran’s allergic rhinitis and/or chronic sinusitis had preexisted his entrance into active duty in August 1982 or whether there was clear and unmistakable evidence that each disability had not been aggravated therein. In Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993), the United States Court of Appeals for Veterans Claims (Court) held that anything less than absolute certainty in a medical opinion was not sufficient to constitute clear and unmistakable evidence to rebut the presumption of soundness. Here, the VA examiner’s language, although certainly expressing some degree of conviction, does not satisfy the “onerous” and “very demanding” clear-and-unmistakable-evidence standard. Thus, the Board finds that an addendum opinion is needed from the September 2014 VA examiner to address the proper legal standard with respect to the claims for service connection for allergic rhinitis and chronic sinusitis. The matter is REMANDED for the following action: Secure a VA addendum opinion from the VA physician who authored the September 2014 Rhinitis and Sinusitis examination report, or if no longer available, from another VA clinician. If the Board’s questions cannot be answered without a physical examination, one should be scheduled. The examiner should answer the following: (i) Did the Veteran’s allergic rhinitis clearly and unmistakably exist prior to entering active military service in August 1982? Why or why not? (ii) If yes, was the Veteran’s allergic rhinitis clearly and unmistakably not aggravated during his military service (meaning that the disability did not permanently increase in severity beyond its natural progression during military service from 1982 to 2003)? Why or why not? (iii) Did the Veteran’s sinusitis clearly and unmistakably exist prior to entering active military service in August 1982? Why or why not? (iv) If yes, was the Veteran’s sinusitis clearly and unmistakably not aggravated during his military service (meaning that the disability did not permanently increase in severity beyond its natural progression during military service from 1982 to 2003)? Why or why not? In answering the questions, the examiner should comment on the July 1982 enlistment physical finding that the Veteran’s mouth, nose and throat were normal; assessments of upper respiratory infections, allergic rhinitis, and sinusitis during service; and an April 2003 Report of Medical Assessment that is devoid of any subjective complaints of clinical findings referable to allergic rhinitis and sinusitis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel