Citation Nr: 20036725 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 17-11 300 DATE: May 28, 2020 ORDER Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for hemorrhoids is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence regarding whether the Veteran’s allergic rhinitis disability is related to his service. 2. There is at least an approximate balance of positive and negative evidence regarding whether the Veteran’s hemorrhoids disability is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for an allergic rhinitis disability are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 2. The criteria for service connection for a hemorrhoids disability are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to April 2005, from December 2008 to January 2010 and from September 2012 to October 2013 with additional service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Rhinitis Factual Background and Analysis The Veteran contends that his current rhinitis disability is the result of his service, to include as due to environmental exposures to include exposures to burn pits. At his February 2020 hearing, the Veteran testified that the air quality of certain locales such as Kabul, where he served was particularly bad. The Veteran underwent a VA examination in September 2015. The examiner provided a diagnosis of allergic rhinitis and opined that it was less likely than not that the Veteran’s allergic rhinitis was incurred in or caused by the claimed in-service event, injury or illness as there was no evidence in the medical records pertaining to recurrent allergy symptoms or an allergy condition which presented while the Veteran was in the military. Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current bilateral eye disability that is related to service. As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, thus are applicable in this case. However, the Board first observes that the Veteran’s allergic rhinitis was not related to an undiagnosed illness, as the disorder does, in fact, carry a diagnosis. The diagnosed rhinitis is attributable to a specific cause, and not an undiagnosed illness or medically unexplained chronic multi symptom illnesses. Thus, while the Veteran served in Southwest Asia, the Veteran did not have multisymptom medically undiagnosed illness as the September 2015 VA examiner specifically determined that the Veteran’s rhinitis had a clear and specific etiology and diagnosis. As the disorder of rhinitis had been diagnosed, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for allergic rhinitis cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. However, in cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran’s medical record shows that he had been diagnosed with allergic rhinitis. Accordingly, as there was a current diagnosis of allergic rhinitis, the first element of service connection is satisfied. As noted above, the Veteran contends that he was subjected to poor air quality during his service. The Veteran contends that during the winter months he often wore improvised breathing masks while he also was exposed to open air burn pits in Tallil, Iraq and Ballad, Iraq. The Veteran’s statements are competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses). Therefore, the in-service injury element has been met and the Board concedes that he was exposed to hazardous air quality during service. The Board acknowledges that the September 2015 VA examiner opined that it was less likely than not that the Veteran’s allergic rhinitis disability was caused by or the result of his military service. However, while the VA examiner noted that there was no evidence in the medical records pertaining to recurrent allergy symptoms or an allergy condition which presented while the Veteran was in the military, the examiner did not specifically address the in-service environmental exposures that the Veteran was subjected to over the duration of his service. The Board also notes that the Veteran consistently and credibly reported that his allergic rhinitis symptoms began during his service as a result of his environmental exposures including poor air quality and open burn pits. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current allergic rhinitis disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a rhinitis disability is granted. See 38 U.S.C. § 5107(b). Hemorrhoids The Veteran contends that he has a current hemorrhoid disability that began in service. The Veteran noted that he regularly has rectal pain and bleeding. The Veteran underwent a VA examination in September 2015. The examiner provided a diagnosis of internal or external hemorrhoids and opined that it was less likely than not that the Veteran’s hemorrhoids were incurred in or caused by the claimed in-service event, injury or illness as there was no evidence in the medical records pertaining to recurrent hemorrhoid symptoms or hemorrhoid complications which presented while the Veteran was in the military. A February 2020 private treatment report noted that the Veteran had rectal bleeding, a change in bowel habits and rectal pain which resulted in them addressing his internal hemorrhoids. In a February 2020 correspondence, the Veteran’s wife reported that during his service in Afghanistan, the Veteran informed her that he had pain, discomfort and rectal bleeding which he did not have prior to his service. Having reviewed the record, the Board finds there is at least an approximate balance of evidence as to whether the Veteran has a current hemorrhoid disability that is related to service. The Veteran’s medical record shows that he had been diagnosed with hemorrhoids. Accordingly, as there was a current diagnosis of hemorrhoids, the first element of service connection is satisfied. As noted above, the Veteran contends that he suffered from hemorrhoids, rectal bleeding and rectal pain during his service. The Veteran’s wife additionally reported that the Veteran informed her of these symptoms during his time in Afghanistan. The Veteran’s statements are competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding a veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses). Therefore, the in-service injury element has been met. The Board acknowledges that the September 2015 VA examiner opined that it was less likely than not that the Veteran’s hemorrhoid disability was caused by or the result of his military service. However, while the VA examiner noted that there was no evidence in the medical records pertaining to hemorrhoids symptoms or hemorrhoids complications which presented while the Veteran was in the military, the examiner did not specifically address the Veteran’s contentions of the Veteran that he experienced rectal bleeding, rectal pain and hemorrhoids during service. The Board also notes that the Veteran consistently and credibly reported that his hemorrhoids symptoms began during his service. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current hemorrhoid disability that was caused by his service. Additionally, a remand for a new VA examination is not necessary because the evidence of record is sufficient to grant the Veteran’s claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for a hemorrhoid disability is granted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. The Veteran contends that he has a current sleep apnea disability as a result of his service. Notably, in a March 2020 treatment report, a private physician indicated that the Veteran presented with complaints of sleep apnea. The physician noted a diagnosis of snoring and reported that he witnessed an episode of apnea. However, no etiology opinion was provided. Notably, the Veteran has yet to undergo a VA examination in conjunction with his claimed sleep apnea disability. An examination or opinion is necessary to make a decision on a claim if the evidence of record contains competent evidence that the claimant has a current disability, and indicates that the disability or symptoms may be associated with the claimant’s active military history, but does not contain sufficient medical evidence to make a decision on the claim. See 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). Accordingly, the Board finds that he should be scheduled for VA examination and opinions to determine whether the Veteran has a current sleep apnea disability that is related to service. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. Those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed sleep apnea disability. The examiner should provide an opinion regarding whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran has a current sleep apnea disability that had its onset in or is etiologically related to the Veteran’s active service. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, Counsel 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.