Citation Nr: 1807022 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-24 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for allergic rhinitis REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran that served on active duty from September 1999 to September 2003. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, in support of this claim, the Veteran testified at a videoconference hearing before the undersigned judge; a transcript of the hearing is associated with the paperless claims file, so of record. In March 2015, March 2016, and May 2017, the Board remanded this claim to the Agency of Original Jurisdiction (AOJ) for additional development. Regrettably, because still further development of the claim is required, the Board is again remanding this claim to the AOJ. REMAND The most recent, May 2017, Board remand was to obtain a medical opinion concerning the nature and etiology of the Veteran's currently-diagnosed allergic rhinitis, including especially in terms of whether his military service caused or aggravated it (the latter if determined it pre-existed his service). To this end the Veteran underwent a VA compensation examination in June 2017. The examiner attempted to respond to the questions asked in the Board's remand, but he seemed to answer them out of sequential order and his answers are internally inconsistent. For example, the examiner concluded, using an equipoise standard (i.e., a 50 percent or higher probability) that the allergic rhinitis did not likely have onset in service because it had pre-existed service. However, when subsequently answering the question of whether there was "clear and unmistakable" evidence that the Veteran's allergic rhinitis pre-existed service, the answer is ambiguous. (The matter of pre-existence is a threshold question to be answered in this case.) In short, the Board deems the VA opinion to be inadequate and needs clarification. The examiner should first address the questions requiring the application of the "clear and unmistakable" evidence standard (i.e., obvious or manifest, or indisputable) and, if necessary, then answer the question that employs an equipoise standard (i.e., a 50 percent or higher probability). In the interests of clarity, the Board will restate the questions needing to be addressed, in a different manner than previously asked. The Board's May 2017 remand also reminded the Veteran that if he wanted to have private treatment records from Kaiser Permanente, dated in 2000 and 2001, considered in connection with this appeal, it was incumbent on him to either obtain those records himself or submit a medical release authorizing VA to obtain them on his behalf. He has previously, on at least two occasions, been requested to provide VA Form 21-4142 for that purpose, and to date he has not responded. This remand therefore serves as yet another notice that, if he wants to have VA assist him in obtaining evidence that may support his appeal, including especially this additional evidence, he must provide the specified medical release authorizing VA to obtain these confidential medical treatment records. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Return the file to the June 2017 VA examiner for an addendum opinion or, if unavailable, arrange for another VA examination of the Veteran to ascertain the etiology of his allergic rhinitis - particularly in terms of its purported relationship with his military service. The entire record must be reviewed by the examiner. The examiner should note that the Veteran is entitled to a presumption of soundness on entry into service with respect to allergic rhinitis; that presumption is rebuttable only by clear and unmistakable (obvious, manifest, and undebatable) evidence to the contrary, and if rebutted, the Veteran is then entitled to a further presumption - that of aggravation of the disability during service - which is also rebuttable only by clear and unmistakable evidence to the contrary. Consequently, the examiner should provide opinions responding to the following questions, in the order that they appear: (a). Is there any evidence in the record that renders it indisputable from a medical standpoint that the Veteran's allergic rhinitis pre-existed his service? (b). If so, please identify this evidence and opine further whether there is any evidence in the record (if so, identifying the evidence) rendering it indisputable from a medical standpoint that the pre-existing allergic rhinitis was NOT aggravated during or by the Veteran's service, or that any increase in severity during his service was due to natural progression of the condition. If increase in severity in service is found, but attributed to natural progression, the examiner must cite to the factual evidence or medical literature supporting this conclusion. (c). If instead allergic rhinitis did not pre-exist service, is it at least as likely as not (a 50 percent or greater probability) that it was incurred during the Veteran's service? If not, please identify the etiological factors for allergic rhinitis considered more likely to be the source or cause of it in this particular instance. The examiner is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its natural progression. The examiner must discuss the underlying rationale for all opinions, citing to supporting factual data or medical authority. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran a Supplemental Statement of the Case (SSOC) and give him and his representative time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).