Citation Nr: 18161114 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-22 321A DATE: December 28, 2018 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for allergic rhinitis (also claimed as nasal condition and allergies) and the appeal is granted to this extent only. Entitlement to service connection for allergic rhinitis (also claimed as nasal condition and allergies) is denied. FINDINGS OF FACT 1. A September 2003 rating decision denied service connection for allergic rhinitis (also claimed as nasal condition and allergies), the Veteran received notice of the decision and he did not file a timely appeal. The decision was confirmed by an unappealed August 2010 rating decision, being the last final denial on any basis. 2. Evidence received since the August 2010 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility of substantiating the claim. 3. The objective medical evidence shows that allergic rhinitis (also claimed as nasal condition and allergies) is not caused by an event, injury or illness during active service, nor is it etiologically related to it. CONCLUSIONS OF LAW 1. The August 2010 denial of the claim of service connection for allergic rhinitis (also claimed as nasal condition and allergies) is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for allergic rhinitis (also claimed as nasal condition and allergies). 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for allergic rhinitis (also claimed as nasal condition and allergies) have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to March 1969 and from November 1990 to April 1991. During the first period of his active service, the Veteran, among his other decorations, was awarded the Combat Infantryman Badge. 1. Whether new and material evidence has been received sufficient to reopen a previously denied and final claim for service connection for allergic rhinitis (also claimed as nasal condition and allergies). In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). A September 2003 rating decision denied service connection for allergic rhinitis claimed as nasal condition, finding the record of a chronic disability began nine years after separation from active service, with no in-service treatment records. The Veteran received notification of the decision five days later and he did not appeal within one year following notification. A May 2006 Board decision upheld the denial this claim for lack medical evidence in the record establishing a nexus between military service and the Veteran’s disorder. The September 2003 decision became final. September 2008 and August 2010 rating decisions did not reopen the claim because of the absence of submissions of new and material evidence and continued the denial. A May 2012 Statement of the Case (SOC) continued the denial for failure to submit new and material evidence. At this point in the record, the Board notes that the April 2017 Supplemental Statement of the Case (SSOC), although purporting to continue the denial for the same reason, nonetheless proceeded to discuss the August 2015 VA examination added to the claims file. This, in effect, reopened the Veteran’s claim. However, regardless of what the Agency of Original Jurisdiction (AOJ) has determined with respect to new and material evidence, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). Based on the grounds stated for the August 2010 denial of the claim, new and material evidence for this claim would consist of evidence showing in-service treatment of the Veteran’s disorder and medical evidence after active service establishing a direct causal connection with active service. The August 2015 VA examination for Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx has since been added to the claims file, offering a diagnosis and an opinion as to service connection. The Board finds this evidence was not of record at the time of the August 2010 rating decision denying reopening and is therefore new. Moreover, it is material, as it provides findings and an opinion possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claim. The evidence is not cumulative or redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claim will turn. For these reasons, the claim is reopened. 2. Entitlement to service connection for allergic rhinitis (also claimed as nasal condition and allergies). Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).   Evidence The service treatment records for the first period of service are negative for complaints or findings indicative of sinusitis, hay fever, or allergic rhinitis. He was seen for respiratory distress on one occasion, without more specific findings and there are no other pertinent findings. The Veteran’s service treatment records (STRs) shows that in the November 1990 quadrennial and March 1991 separation examinations, bracketing the Veteran’s active service in the First Gulf War, he denied past or current sinusitis, hay fever and chronic cough. The category of sinuses was checked off as normal. All other STRs, to include those pertaining to the Veteran’s Vietnam service, indicate normal sinuses and nose and do not reflect past or then current related complaints, treatment or diagnoses. After active service, June 1997 private treatment x-rays showed normal paranasal sinuses. However, a July 1997 VA radiological examination revealed mild ethmoid and sinusitis. A March 1999 VA medical certificate’s diagnostic impression included sinusitis. In May 1999, a consultation notes shows, among his other problems, the Veteran has mild ethmoid sinusitis. His prescriptions included Benadryl for an allergy. Yet, in a September 1999 hearing Conservation Program note, the Veteran denied having sinusitis. January 2000 VA mental health progress notes included the Veteran’s report of his allergy being a result of his participation in the Gulf War. In July 2000 VA progress notes, the Veteran was assessed with allergic rhinitis. In September 2000, the Veteran reported frequent allergic episodes. October 2001 VA progress notes show that the Veteran’s “main complaint” was his allergy, which was not responsive to medication. After January 2004 VA x-rays, the Veteran’s assessment stated “[c]hronic rhinitis x-rays shows chronic sinuses inflammation and will add nasal steroids.” A July 2004 VA treatment note assessment states the Veteran’s allergic rhinitis responded well to Benadryl. In August 2005, the Veteran underwent a VA examination for nose, sinus, larynx, and pharynx. The August 2005 noted a “completely normal” nasal examination and stated the final diagnosis as allergic rhinitis. He further noted the following: Most likely patient’s nasal allergy will subside in the absence of the allergen since this is not a chronic condition. There is no way I can determine if the allergen causing his allergic rhinitis was present in the Persian Gulf. No evidence about his allergic rhinitis in the C-File. [Patient] was treated by a private allergist. An October 2009 VA initial allergy note shows that that the Veteran reported nasal stuffiness, runny nose, discharges, and post-nasal drip. Upon examination, the Veteran’s nasal mucosa were pink, but swelling. In a December 2009 VA allergy and immunology note, the Veteran was assessed with non-allergic rhinitis, controlled. An August 2010 VA allergy and immunology note includes in its assessment the following: Patient relates sporadic recurrence of symptoms, every two to three weeks lasting 2-3 days and alleviated by use of Zyrtec and azelastine. triggers are unknown, but Sahara dust is mentioned as a potential aggravant [sic]. Patient’s skin test negative for all tested inhaled allergens. Symptoms and test results suggestive of non-allergic rhinopathy, adequately alleviated by current azelastine and Zyrtec. Between September 2010 and January 2012, the Veteran’s VA assessments included chronic rhinitis. In August 2015, the Veteran underwent a VA examination for Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx, in which the August 2015 VA examiner restated the Veteran’s 1997 diagnosis of allergic rhinitis. She also identified a maxillary sinus disorder causing chronic sinusitis. She noted the Veteran’s report of suffering recurrent on ongoing nasal allergies starting a year anda a half after returning from the First Gulf War. The August 2015 VA examiner’s diagnosis was allergic rhinitis and sinusitis. She opined that the allergic rhinitis and sinusitis were less likely than not caused by [or] related to the environmental exposures while [in southwest Asia]. In her rationale, she explained: The available STRs and medical records do not show evidence of signs, symptoms, diagnosis or treatments suggestive of a chronic disability pattern related to rhinitis or sinusitis during active military service or within a year from service. As per the medical records and as per the [V]eteran’s own statements, the onset of his rhinitis/sinusitis condition was more than a year after separation from service. The summary of the treatment record shows that the STRs contain no reports, complaints, treatment, or diagnoses related to rhinitis, sinusitis, nose conditions, or allergies. The post-service treatment record offers no earlier evidence of a disorder than the Veteran’s July 1997 x-ray results of mild ethmoid and sinusitis, more than six years after the conclusion of his active service. Although noting the Veteran’s reports of having developed allergies and a nose and sinus disorder after service in the First Gulf War, no treatment provider, private or at VA, has determined, based on clinical findings, that the disorder is related to that service. For example, the August 2005 VA examiner stated, “[t]here is no way I can determine if the allergen causing his allergic rhinitis was present in the Persian Gulf. No evidence about his allergic rhinitis in the C-File.” Moreover, the August 2015 VA examiner observed that the Veteran’s own statements indicate that the onset of the disorder is more than a year after separation from active service. From this record, the Board does not discern a direct causal relationship with active service. The Board has reviewed and carefully considered the Veteran’s August 2000 Statement in Support of Claim; the statement accompanying his September 2000 VA Appeals Form 9; his March 2010 Statement in Support of Claim; the statement accompanying the Veteran’s June 2012 VA Appeals Form 9; and the statement accompanying his May 2017 VA Appeals Form 9, as well as his reports to treatment providers, as they have appeared throughout the record. These have helped the Board in understanding better the nature and development of the Veteran’s disorder and how it has affected him. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to her senses and there is no reason to doubt her credibility. However, the Board must emphasize that the Veteran is not competent to diagnose otolaryngologic or allergy and immunological disorders or interpret accurately clinical findings pertaining to them, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of current disabilities to service-related events, injuries or illnesses or determine their current level of severity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the foregoing reasons and based on the objective medical evidence, the Board finds allergic rhinitis (also claimed as nasal condition and allergies) is not caused by an event, injury or illness during active service, nor is it etiologically related to it. Consequently, service connection is not established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel