Citation Nr: 19115167 Decision Date: 03/01/19 Archive Date: 02/28/19 DOCKET NO. 15-37 898 DATE: March 1, 2019 ORDER Service connection for chronic allergic rhinitis is granted. Service connection for lumbar spine disability, to include degenerative disc disease (DDD), is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s chronic allergic rhinitis began during active service. 2. The Veteran’s lumbar spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic allergic rhinitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to June 1999. This case comes before the Board of Veteran’s Appeals (Board) on appeal of April 2012 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For arthritis, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). 1. Service connection for chronic allergic rhinitis. The Veteran contends that he developed chronic sinus problems in service, and the condition has persisted since that time. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran’s allergic rhinitis had its onset in service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Service treatment records (STRs) reflect that the Veteran reported use of over-the-counter (OTC) medications for allergies throughout service. An August 1978 treatment note documents mild sinus problems for which the Veteran was given a decongestant. The Veteran endorsed sinusitis on his November 1989 10-year medical examination and reported use of OTC medications for seasonal allergies. May 1998 dental records noted use of prescription allergy medication. Subsequent treatment records and March 1999 Report of Medical History on separation document reported use of both prescription and OTC medications for allergies. The Veteran endorsed sinusitis and hay fever or allergic rhinitis. Post-service treatment records diagnose allergic rhinitis and note continued treatment for the condition. The March 2012 VA examination report reflects a diagnosis of allergic rhinitis although there were no objective signs during examination. On balance, the weight of the evidence supports the claim for service connection for allergic rhinitis because the Veteran competent to report his symptoms, his report is corroborated by STRs, and post service medical records show that he is prescribed Allegra for allergic rhinitis symptoms. Given the nature of allergic rhinitis treated with Allegra, the Board finds that the favorable evidence is more persuasive than the absence of objective findings at the time of the 2012 VA examination. Accordingly, the claim is granted. 2. Service connection for lumbar spine disability. The Veteran contends that he slipped a disc in his back while playing basketball in service and pain has continued since. See Correspondence (October 2012). He reported that his April 2012 work-related injury aggravated an already injured back. See NOD (February 2014). The question for the Board is whether the Veteran has a chronic disease was shown in service or manifested to a compensable degree within one year after service separation or had continuity of symptomatology; and whether any currently shown disability is otherwise etiologically related to an in-service injury or disease. The Board concludes that, while the Veteran has DDD of the lumbar spine, which is a chronic disease under 38 C.F.R. § 3.309(a), it is not shown in service and did not manifest to a compensable degree within one year after service; and that continuity of symptomatology is not established. The Board further concludes that a current back disability is not otherwise etiologically related to an in-service event, injury, or disease. STRs include a March 1999 service separation examination, which reflects normal clinical evaluation of the spine and musculoskeletal system. Three months later, prior to his release from service, the Veteran presented with low back complaints after he was pushed in the lower back while playing basketball 2 days prior. Post-service low back complaints are first documented on an April 2012 employee report of injury. The report reflects that the Veteran had “slipped [a] disc while playing basketball” and “since approx. 1996-1999 had periods of lower back discomfort.” Subsequent emergency department report diagnosed low back pain with radiculopathy. The Veteran described the feeling of a pinched nerve in the lower back for 4 days and reported that he had slept in a different bed causing his back to hurt on the left side; he stated the pain had moved to the lower right side with radiation down the leg. See Medical Treatment Record (July 2013). April 2012 x-ray showed multilevel degenerative disk changes, and May 2012 MRI showed multilevel lumbar discovertebral disease. A May 2013 neurological consult documented inferior disc herniation at L1-2 and significant degeneration and disc bulge at L4-5; lumbar spondylosis without sciatica was diagnosed. A July 2013 VA medical opinion reflects a diagnosis of DDD of the lumbar spine that is less likely than not related to in-service injury based on the Veteran’s STRs, showing acute back strain, and his post service treatment records. The opinion reflects that the condition was most likely related to degenerative changes in the spine that occur with natural aging and increased axial load due to body mass index (BMI) as well as due to his reported injury while at work with onset of chronic low back pain with right leg symptomatology. The examiner noted more than a decade intervening service separation and diagnosis of lumbar spine DDD. VA treatment records show the Veteran was not diagnosed with degenerative disc disease until April 2012, over a decade after his separation from service and outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of back pain since his injury in service and consistently since service, neither he nor his spouse are competent to provide a diagnosis in this case or determine that these symptoms were manifestations of DDD of the lumbar spine. The issue is medically complex, as it requires knowledge of musculoskeletal system and disease processes of the spine along with an ability to interpret diagnostic medical tests. Jandreau, 492 F.3d 1372. Also, to the extent that the Veteran suggests having chronic back problems since service, the Board finds that this is incongruous with the absence of documented complaints and treatment until his work related back injury years after his separation from active service. The Board finds that the Veteran’s history as reported in conjunction with seeking VA benefits has diminished probative value. Caluza v. Brown, 7 Vet. App. 498 (1995). Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to competent medical evidence, which shows a diagnosis for DDD over a decade after service and outside the initial post separation year; the evidence tends to suggest that the Veteran’s current back disorder is related to an intercurrent injury many years after service rather than to the basketball injury of June 1999. Additionally, the more persuasive evidence of record shows that the Veteran’s current lumbar spine disability is not linked to an in-service event, injury, or disease. The July 2013 VA examination report opined that the Veteran’s lumbar spine disability is not at least as likely as not related to an in-service injury, event, or disease, including history for an in-service injury and findings for acute lumbar strain. The July 2013 VA examination report provided a comprehensive rationale for that conclusion based on a thorough review of the claims file and consideration of the lay statements of record and reported history by the Veteran. Veteran has not presented a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 3. Service connection for hypertension is remanded. The Veteran contends that hypertension has its onset in service or was first manifested therein. For VA rating purposes, “hypertension” means that diastolic blood pressure is predominately 90 mm. or greater; “isolated systolic hypertension” means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104 , Diagnostic Code 7101, Note 1. The question for the Board is whether hypertension, a chronic disease under 38 C.F.R. § 3.309(a), it is shown in service or manifested to a compensable degree within one year after service; or whether it is otherwise etiologically related to an in-service event, injury, or disease. STRs are silent for a diagnosis of hypertension or treatment therefor although there are some elevated blood pressures readings. For instance, in November 1997, blood pressure was 160/92, which was in conjunction with pain complaints. There were other elevated readings that did not meet VA’s definition of hypertension for rating purposes. However, notably, when the Veteran separated from active service in June 1999, his blood pressure was 162/86. Although hypertension was not diagnosed at that time, the record shows that not long thereafter, in 2001, the Veteran diagnosed with and treated for hypertension. At this time, his blood pressure was 170/106. The April 2012 VA examination report noted instances of elevated blood pressure in service and opined these did not meet VA’s criteria for a diagnosis of hypertension. The Board finds that the medical opinion is inadequate as it does not answer the quesiton of whether it is as likely as not that hypertension, diagnosed in 2001, was first manifested during the Veteran’s active service or to a compensable degree within the one year after service given the many documented elevated blood pressure findings in service and at service separation. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hypertension. The claims file must be made available to and reviewed by the examiner. The examiner should opine on whether hypertension at least as likely as not (1) began during active service, (2) manifested to a compensable degree within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Further, the examiner should indicate whether any of the elevated blood pressure readings shown in service to include at service separation represent the earliest manifestations of later diagnosed hypertension. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel