Citation Nr: 1806805 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-04 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for allergic rhinitis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to January 1972, including service in the Republic of Vietnam. His awards and decorations include the Combat Infantry Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied service connection for allergic rhinitis. The Board remanded the Veteran's claim in June 2015 and May 2017 for further evidentiary development. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has allergic rhinitis that is related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence establishes that the Veteran has suffered from current allergic rhinitis during the appeal period. Diagnoses were made multiple times, including as noted in June 2010, October 2012, and July 2013 VA primary care treatment reports. Impressions of persistent allergies have also been noted in VA treatment reports, including in June 2014. Review of the Veteran's service treatment records (STRs) reveals that he was treated for upper respiratory infections (URIs) during service. In December 1970, he sought clinical treatment where he reported suffering from a URI for three days. He had an elevated temperature and was taking penicillin. He reported having painful eyes. The report indicated that records from the Saturday before were not available. The report further indicates that the Veteran was admitted to a URI ward. Additionally, a January 1971 treatment report, dated approximately one month later, indicated that the Veteran complained of a URI that had lasted five days. Upon evaluation, his chest was clear. He was placed on light duty for two days. In his May 2011 notice of disagreement, the Veteran credibly reported that he became ill during service in November 1970 after doing weekend maneuvers during record cold temperatures. He noted that he was hospitalized for respiratory problems at Fort Polk, Louisiana. He reported that he has had respiratory issues ever since. He similarly reported in his February 2013 substantive appeal, on VA Form 9, that URI symptoms he suffered during service were essential the same as symptoms of allergic rhinitis. He noted that he believed he may have been misdiagnosed during service. He again maintained that he had suffered from allergic rhinitis symptoms since service, which has had many unknown triggers. Medical evidence dated since the Veteran's separation from service indicates that he sought VA primary care treatment in May 2004. The treatment report noted an assessment of chronic sinusitis and allergic rhinitis. The physician noted that the Veteran had a long history of clear drainage from sinuses, worse in the spring with pollen. Continuing VA treatment reports dated, before and throughout the appeal period, reflect recurrent allergic rhinitis symptoms. After review of the record, the Board finds that the Veteran has provided a competent and credible history of symptoms of rhinitis occurring during and since his separation from service. See Gibbons v. Shinseki, No. 10-2091 2011 U.S. App. Vet. Claims LEXIS 2500, n. 4 (Vet. App. Nov. 17, 2011) (mem. dec.) (citing Dorland's Medical Dictionary (32d ed. 2012), defining rhinitis as "inflammation of the mucous membrane of the nose, marked by dryness, followed by increased mucous secretion from the membrane, impeded respiration through the nose, and pain," at 1639. He is competent to report these symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The board also notes that the fact that the Veteran received the Combat Infantryman Badge establishes that he engaged in combat. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (list of Decorations that are evidence of combat participation). The fact that the Veteran engaged in combat is significant because VA laws and regulations allow a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)). While allergic rhinitis is not the type of disability that is typically due to a combat injury, Congress enacted the laws and regulations relating to combat, currently codified at 38 U.S.C. § 1154 (b) and 38 C.F.R. §3.304(d) because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. H.R. Rep. No. 1157, at 3 (1941). Reeves, 682 F.3d at 998. Moreover, the combat rules can also be invoked in order to show that the Veteran incurred the disability itself while in service. Id. at 999. Here, there is support in the evidence for the Veteran's statements regarding his incurrence of allergic rhinitis in service, and this is buttressed by the combat rules. The record contains a VA examination report and multiple opinions from VA examiners. In a March 2016 VA examination report, the examiner determined that the Veteran did not have a current diagnosis of chronic sinusitis or allergic rhinitis, and the examiner used this finding in support of a negative etiological opinion. The Board has found, however, that this opinion is inadequate where the examiner did not discuss the significance of the medical evidence of rhinitis and sinusitis diagnoses during the appeal period. Additionally, VA opinions obtained in May 2016 and August 2017 are inadequate where the May 2016 VA examiner provided contradictory statements regarding the presence of current rhinitis, and where both opinions failed to adequately address the Veteran's credible and competent reports of having recurrent rhinitis symptoms that commenced during service and have continued since. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting inadequacy of a VA's examiner's opinion, which "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that [the] claim for service connection could be proven without contemporaneous medical evidence"). This is particularly true given the Veteran's combat service. Given the inadequacy of the multiple VA examinations, the Board could remand the claim for yet another opinion. However, as indicated by the above discussion, there is sufficient evidence to decide the claim, and another remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). The Board finds it appropriate to do so, given the Veteran's competent and credible reports of having symptoms of allergic rhinitis that commenced during in and continued since his combat service; which is also supported by medical evidence diagnosing ongoing allergic rhinitis. As a result of this evidence, sufficient nexus has been established to indicate that the Veteran's recurrent allergic rhinitis had its onset during his active service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"); 38 C.F.R. § 3.303(a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). The evidence is thus at least evenly balanced as to whether the Veteran's allergic rhinitis had its onset during active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for allergic rhinitis is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. In light of the favorable decision to grant the claim of entitlement to service connection for allergic rhinitis, any deficiency as to VA's duties to notify and assist, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is harmless. ORDER Entitlement to service connection for allergic rhinitis is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs