Citation Nr: 1808988 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-28 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for rhinitis, to include as secondary to service-connected migraines and sleep apnea. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). This case is currently under the jurisdiction of the St. Petersburg, Florida VA RO. The Board remanded this matter in April 2014, November 2014, and December 2016. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2013. A copy of the transcript of that hearing has been included in the claims file. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, rhinitis had its onset in service. CONCLUSION OF LAW The criteria for service connection for chronic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Veteran is seeking service connection for chronic rhinitis. Throughout the course of his appeal, he has asserted several theories of entitlement for establishing service connection. First, he notes that he suffered from rhinitis during service and has continued to experience the symptomatology associated with rhinitis since. He has alleged entitlement to service connection for rhinitis as secondary to his service-connected sleep apnea or migraines. The Veteran states that he normally wakes up with sinus pressure, congestion, and teary eyes, especially when he has headaches. He states that he has been told the symptoms could be related to sleep apnea. The Veteran states that he frequently treats his symptoms with over-the-counter medication. As the Board finds there is sufficient evidence of record to grant this claim on a direct basis, consideration on a secondary basis is unnecessary. As an initial matter, the evidence supports a finding that the Veteran has a current diagnosis of rhinitis. A VA treatment report from October 2009 reflects that the Veteran was diagnosed with allergic rhinitis and prescribed Claritin. Additionally, the June 2014 VA examiner provided a diagnosis of allergic rhinitis. The Veteran's service treatment records also show in-service treatment for symtpoms commonly associated with rhinitis. Specifically, a December 1993 service treatment report reflects treatment for watery eyes, scratchy throat, and runny nose. A service treatment record from May 2000 reflects that the Veteran was treated for probable allergic rhinitis. He was also treated in service for seasonal allergic rhinitis in September 2000. The Veteran has undergone numerous VA examinations in connection with his claim. During the applicable appellate period, he was either scheduled for examinations or VA provided opinions dated in October 2007, June 2014, September 2015, October 2015, December 2016, and January 2017 in attempts to address the Veteran's various theories of entitlement. The October 2007 VA examiner failed to render a diagnosis of rhinitis as no pathology was available. Thereafter, following a remand by the Board in April 2014, a June 2014 VA examiner provided a diagnosis of allergic rhinitis, as is consistent with the record. However, the examiner determined that it was less likely as not related to the Veteran's military service as he denied sinusitis at his separation physical. No further rationale was provided. Following a remand by the Board in November 2014, two VA medical opinions were obtained in September 2015 and October 2015 to determine the nature and etiology of the Veteran's rhinitis and its potential link to service-connected migraine headaches or sleep apnea. The September 2015 opinion addressed only direct service connection, and stated that "[a]lthough he was seen multiple times over these two decades for Upper Respiratory Infections and Cluster Headaches, he was seen only once in 2000 for Possible allergic rhinitis." The examiner also stated that "[s]ince allergic problems tend to reoccur . . . the absence of recurring symptoms over the ensuing seven years argues against this as an ongoing chronic illness." The examiner concluded on this basis that the Veteran's allergic rhinitis is less likely than not related to his military service. The Board again remanded this appeal in December 2016 for an additional opinion as to the etiology of the claimed disorder as the previous opinions in the record incorrectly noted the Veteran was only seen once during his military service in 2000 for possible allergic rhinitis. In fact, as stated above, the Veteran was seen for allergic rhinitis and related symptoms in October 1990, December 1993, May 2000, and September 2000. An opinion was obtained in December 2016 that determined there was no continuity of symptomatology of the Veteran's rhinitis as he was only seen in service in 2000 and was not seen again. An additional opinion was obtained in January 2017 which was largely duplicative of the December 2016 opinion in finding no evidence of continuity of symptomatology. The Board notes the VA examiners did not adequately consider and address the Veteran's competent reports of suffering from persistent and recurrent symptoms of rhinitis beginning during his military service and continuing since, which was set forth early in the appellate period. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336. This deficiency renders the findings of the VA examiners, collectively, incomplete, and the Board accords the opinions no probative value. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board finds that the competent evidence of record confirms the he has experienced recurrent symptoms associated with allergic rhinitis since his separation from service. Further, he is competent to report the occurrence of symptoms commonly associated with allergic rhinitis, such as sneezing, itchy and watery eyes, and difficulty breathing, since they are within the realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of his statements as the evidence of record confirmed a diagnosis of allergic rhinitis. As such, the Board finds his lay testimony is both competent and credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Therefore, service connection for rhinitis on a direct incurrence basis is warranted. ORDER Entitlement to service connection for chronic rhinitis is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs