Citation Nr: 20021748 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-35 950 DATE: March 26, 2020 ORDER Entitlement to service connection for right shoulder condition is granted. Entitlement to service connection for allergic rhinitis is denied. REMANDED Entitlement to service connection for bilateral foot condition is remanded. Entitlement to service connection for a skin disability, to include as secondary to bilateral foot condition, is remanded. FINDINGS OF FACTS 1. Resolving reasonable doubt in the Veteran’s favor, her right shoulder condition is etiologically related to her military service. 2. The Veteran’s allergic rhinitis clearly and unmistakably preexisted her military service; there is clear and unmistakable evidence that the Veteran’s allergic rhinitis did not undergo permanent increase in severity by her military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1995 to April 1998, from October 2001 to April 2002, and from February 2003 to May 2004. She also had service in the Army National Guard from April 1998 to October 2001, from April 2002 to February 2003, and from May 2004 to August 2004. The Veteran testified at a videoconference hearing in May 2016, and transcript of the hearing is of record. During the hearing, the Veteran testified that she believes her skin disability is related to her bilateral feet condition. See hearing transcript at 17. Accordingly, the Board of Veterans’ Appeals (Board) has expanded the issue to include consideration of secondary service connection as noted above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection The Veteran is seeking service connection for right shoulder condition and allergic rhinitis. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). 1. Entitlement to service connection for right shoulder condition is granted. The Veteran contends that her right shoulder disability is etiologically related to her military service. Certain chronic diseases, to include arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In this case, the Veteran underwent a May 2019, where an X-ray confirmed the presence of acromioclavicular joint degenerative disease that is considered a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the provisions of subsection 3.303(b) for chronic disabilities apply, and a claim for this disability may be established by evidence of a continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). During the hearing, she testified that she begun having right shoulder pain in service. See hearing transcript at 3. She further indicated that she continued to have problems after service. Id. at 4. According to her testimony, the Veteran sought treatment for right shoulder at Student Help center where she went to school in Iowa. Id. Unfortunately, the Veteran reported that she was unable to obtain her medical records, including a right shoulder x-ray, from the Student Help Center. The Board notes that a 2004 radiology records note impression consistent with acromioclavicular separation. The Board notes that the Veteran, as a lay person, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is also competent to testify as to observable symptoms or injury residuals. Thus, the Veteran is without a doubt competent to report that she experienced right shoulder pain during service and that it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds her testimony credible. Based on the evidence of record, the Board finds that there is sufficient competent and credible evidence to establish that there is continuity of symptoms. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a right shoulder disability are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for allergic rhinitis is denied. The Veteran contends that service connection for allergic rhinitis is warranted. The Veteran testified that her hay fever or seasonal allergies, which pre-existed her active service was aggravated by her service in Persian Gulf. See hearing transcript at 17. In particular, the Veteran contends that sand fly bites in Iraq made her allergies worse. See January 2013 Statement. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s allergic rhinitis preexisted her military service. Although the Veteran’s hay fever (allergic rhinitis) was not noted in her multiple entrance into active service examinations, she reported having hay fever during her November 1999 and April 2000 retention examination. In addition, she reported occasional congestion/sinus during allergy season during the February 2003 entrance examination. Combined with Veteran’s testimony, the Board finds her consistent report of allergies during her examine before retention for active service raises the issue of presumption of soundness. The appellant established “veteran” status based on her period of active duty service. See Hill v. McDonald, 28 Vet. App. 243 (2016). The Veteran’s appeal is based on the period of active duty from February 2003 to May 2004, the period when she was deployed to the Persian Gulf. As noted above, the Veteran’s February 2003 entrance examination is absent of any notations of defects, infirmities, or disorders. In particular, the Veteran’s service treatment records reflect that she sought treatment for allergic rhinitis in June 2003. Therefore, with respect to the allergic rhinitis, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In this case, the Veteran testified that she had allergies before entering active service, where she was deployed to the Persian Gulf. See hearing transcript at 18. As noted above, the Veteran reported having allergic rhinitis during the February 2003 entrance exam. In addition, an October 2011 VA examination reflects that the Veteran was diagnosed with allergic rhinitis in November 1999, prior to her entering active service in February 2003. During that exam, she reported that she has had allergies since childhood. The Veteran is competent to describe the onset of her allergies and report the date of her diagnosis. The Veteran also underwent a VA examination in July 2019, where the examiner noted allergies that never go away. That examiner concluded that the Veteran’s condition clearly and unmistakably existed prior to service. Therefore, the Board finds that the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s allergic rhinitis preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). The July 2019 medical opinion of record reflects that the Veteran’s allergic rhinitis clearly and unmistakably was not aggravated by service. The examiner considered the increase in the number of agent’s the Veteran is allergic to after her military service. The examiner explained that the Veteran may experience temporary exacerbation of her symptoms based on allergens in the environment at particular time. However, once such allergen is removed the symptoms resolve. Therefore, the examiner concluded that the Veteran’s allergic rhinitis has not been permanently aggravated. Based on this opinion, the Board finds that the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s allergic rhinitis preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board finds that this most recent opinion adequately addresses the medical and lay evidence of record. REASONS FOR REMAND 3. Entitlement to service connection for bilateral foot condition is remanded. Pursuant to the Board’s remand directive, a May 2019 VA medical opinion was obtained regarding the Veteran’s claimed bilateral flat foot condition. The examiner provided a negative nexus opinion on the grounds that there is no diagnosis of flat foot. This opinion, however, is inadequate because it does not address the Veteran’s diagnosis of metatarsalgia of the right and left foot, as well as degenerative arthritis of the left foot. Therefore, a remand to obtain an adequate medical opinion is necessary before the claim can be adjudicated. 4. Entitlement to service connection for a skin disability, chilblains of the bilateral extremities, to include as secondary to bilateral foot condition is remanded. Pursuant to the Board’s remand directive, a nexus opinion was obtained regarding the issue of skin disability in May 2019. In that opinion, the examiner concluded that the Veteran’s skin disability is less likely than not related to her military service. This opinion, however, is inadequate because the examiner did not provide a complete rational to support the conclusion. Rather, the examiner summarized the Veteran’s previous treatments for skin disability and noted that the Veteran’s separation exam is not available. Furthermore, the examiner did not provide an opinion regarding the Veteran’s contention that her skin disability is related to her bilateral foot condition. Therefore, the Board finds that a remand to obtain another opinion is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Update VA treatment records. 2. After completing directive (1), the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of a bilateral foot condition. Based on the record, the examiner should provide a response to the following: (a) Identify all diagnosed feet disabilities. (b) As to any/each diagnosed feet condition, is it at least as likely as not (a 50% or higher degree of probability) that the disability is related to service? The rationale for this opinion must include some discussion of the Veteran’s testimony that she was recently fitted for arch supports by a VA podiatrist. Detailed reasons for all opinions should be provided. 3. After completing directive (1)-(2), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s skin disability. The examiner should review the claims file in its entirety and answer the following questions: Is the Veteran’s skin disability at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran’s active military service? Alternatively, if the Veteran’s bilateral foot condition is related to service, is her skin disability at least as likely as not (50 percent or greater probability) caused by her bilateral feet condition; and   Is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin disability has been aggravated by bilateral foot condition? Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.