Citation Nr: 1826167 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 13-25 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for allergic rhinitis. 3. Entitlement to service connection for a headache disorder. 4. Entitlement to service connection for bilateral shin splints. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has additional pending issues for which a Board hearing is pending. As such, those issues will not be addressed in this decision, but will be the subject of a later Board decision. FINDINGS OF FACT The Veteran's tinnitus, allergic rhinitis, headache, and bilateral shin splint disabilities were incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303 (2017). 2. The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a headache disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303 (2017). 4. The criteria for service connection for bilateral shin splints have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a grant of service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted through the application of statutory presumptions for chronic conditions, such as organic diseases of the nervous system. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1101(3) (2012). A claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013)(holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Following a review of the record, the Board finds that service connection for tinnitus, allergic rhinitis, a headache disorder, and bilateral shin splints is warranted, as all of the elements of service connection are met. Taking the elements of service connection in order, for tinnitus, the record shows a current disability, as an April 2009 VA contract examiner diagnosed tinnitus. The record also shows in-service incurrence, as the Veteran was seen for ringing in the ear in in service in September 2000. Service treatment records (STRs) also show that the Veteran was monitored for routine exposure to hazardous noise. Finally, the record contains positive nexus evidence relating the Veteran's current tinnitus to her active service. In this regard, the Veteran has provided competent and credible lay statements regarding an onset and a continuity of tinnitus since service, and tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, her testimony regarding nexus is supported by a May 2009 positive opinion that her tinnitus is at least as likely as not related to noise exposure in service. Thus, as all the elements are met, service connection for tinnitus is granted. Turning to allergic rhinitis, ongoing VA treatment notes and a September 2012 VA examination report show a diagnosis of the condition, thus establishing a current disability. STRs also show various complaints of seasonal allergies throughout service for which the Veteran was treated with Allegra, as noted in June 2002 and January 2003,. Allergic rhinitis was further diagnosed and treated in June 2004 and August 2007., and was also included as an active problem in March 2008 at the time of the Veteran's retirement examination. Thus, in-service incurrence is established. Finally, the Veteran has provided competent and credible testimony regarding a continuity of her chronic rhinitis symptoms post service, and her testimony is supported by the September 2012 VA examination report. In this regard, following a review of the claims file, the September 2012 VA examiner diagnosed current allergic rhinitis and noted that STRs showed treatment for seasonal allergies beginning around 2000, and allergic rhinitis from 2004. Thus, as all the elements are met, service connection for allergic rhinitis is granted. Regarding headaches, VA treatment notes show current complaints of a headache disability, including in September 2011, October 2011, February 2012, March 2012 and July 2013, described as chronic headaches or migraine headaches, and assessed as simply "headaches" or "likely migraines." Thus, a current headache disability is shown by the clinical evidence of record. STRs also support in-service incurrence of a headache disability. In this regard, in March 2004, the Veteran reported frequent or severe headaches on periodic service exam, and in April 2004, she sought treatment for a three month history of severe headaches. In April 2005, she sought further treatment for continued headaches and, in June 2005, was assessed with cephalgia. At that time, it was noted that the headache may be associated with sinus or allergy symptoms versus migraine headaches. She was treated again for headaches in January 2006, and headaches were included on her active problem list at the time she had her March 2008 retirement physical. Finally, regarding headache, the Veteran has provided competent and credible testimony regarding post service continuity of the chronic headache disability shown in service. Her testimony is supported by post-service clinical evidence showing continued complaints of chronic headaches. To the extent that a May 2009 VA contract examiner found that a diagnosis related to headaches would be speculative because there were no objective findings on clinical examination, such an opinion is of no probative value. Indeed, the Board notes that the Veteran did not claim to have an active headache at the time of the examination, and, thus, objective findings would not be expected. Thus, as a current disability, in-service incurrence of a chronic headache disability, and continuity of chronic headaches post service, are shown by the record, service connection is warranted. Turning finally to bilateral shin splints, the Veteran has provided competent and credible lay testimony of current bilateral shin pain, as detailed in an August 2013 statement. To the extent that an April 2009 VA examiner found no pathology to render a diagnosis of shin splints, the Board notes that in April 2008, just one year prior to the exam and just months before retirement, the Veteran was put on profile for diagnosed bilateral shin splints. Post-service treatment records dated in October 2009 also show active problems to include shin splints and, when considered with the Veteran's competent lay statements of bilateral shin pain, the Board finds that the evidence sufficiently establishes a current disability. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The STRs further show complaints of chronic bilateral shin pain throughout service from as early as July 1989 and up until April 2008. Indeed, in April 2004, she reported that she had experienced shin pain her whole career, and in July 2004 reported a 16 year history of intermittent shin pain that was worse with running. Additionally, STRs show an ongoing assessment of primarily shin splints or medial tibial stress syndrome, but also chronic bilateral stress fractures. Notably, in March 2004, it was noted that diagnostic imaging of the bilateral leg was consistent with shin splints. Thus, in-service incurrence is established. Finally, the Board finds that the Veteran's competent and credible lay testimony regarding a continuity of chronic bilateral shin pain, diagnosed as shin splints, in this instance is sufficient to establish nexus. In short, the Board finds that the Veteran had in-service tinnitus, allergic rhinitis, headache, and shin split disabilities, and has current disabilities related to those diagnoses. The Veteran's service treatment records further show a chronicity of symptoms related to allergic rhinitis, headaches, and bilateral shin splits during service, and credible lay statements and statements from competent medical professionals support that the Veteran's chronic symptoms continued post service to the present. And, with respect to tinnitus, a VA examiner has expressly provided a positive nexus between the disability and service. Hence, entitlement to service connection for tinnitus, allergic rhinitis, a headache disorder, and bilateral shin splits, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). ORDER Service connection for tinnitus is granted. Service connection for allergic rhinitis is granted. Service connection for a headache disorder is granted. Service connection for bilateral shin splints is granted. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs