Citation Nr: 20039932 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-03 915 DATE: June 11, 2020 ORDER Entitlement to service connection for chronic urticaria is denied. FINDING OF FACT The appellant’s chronic urticaria clearly and unmistakably preexisted his period of active duty service, and clearly and unmistakably was not aggravated during his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic urticaria are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Navy from October 1987 to December 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the claim for service connection for chronic urticaria, claimed as hives, allergic reaction, itching, histamine-mediated shock. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2012. A Statement of the Case (SOC) was issued by VA in December 2014. VA received the appellant’s Substantive Appeal (Form 9) requesting a Board hearing by live videoconference in February 2015. The appellant appeared before the undersigned Veterans law Judge at a video conference hearing in May 2018. A transcript of that hearing has been added to the claims folder. The claim was remanded by the Board in July 2018 for further development, to include obtaining a new medical opinion addressing the etiology of the appellant’s claimed disability. A new medical opinion was obtained by VA in July 2019. A Supplemental Statement of the Case (SSOC) was issued by VA in April 2020. 1. Entitlement to service connection for chronic urticaria is denied. The appellant currently contends that his diagnosed chronic urticaria episodes are due to his exposure to particulates that were dispersed during a fire, while he served aboard the U.S.S. Constellation. The fire is noted to have occurred in August 1988. He contends that he both assisted in containing and extinguishing the fire, and the clean-up afterwards. He asserts that his current urticaria is due to his exposure to paint and other environmental hazards that would have been spread around during this fire. 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 that disability 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 appellant’s chronic urticaria preexisted his military service, as it was not noted on his entrance examination. The appellant’s May 1987 entrance examination is absent of any notations of defects, infirmities, or disorders related to his claimed chronic urticaria. Therefore, with respect to the claimed chronic urticaria, 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 October 1988, the appellant developed body rash, itchiness, and shortness of breath following exposure to paint. He reported this was his first exposure to paint since joining the Navy, and that he had gotten some paint directly on his body. At the time, he informed his treating health care providers that he was diagnosed with an allergy to paint by a skin scratch test 7 year prior to the October 1988 paint exposure and subsequent outbreak. He received treatment, to include two visits to the emergency room between October 6, 1988 and October 10, 1988 and a prescription for Benadryl. The diagnosis on October 7, 1988 was diffuse urticaria, acute, probably secondary to some component of paint. The appellant underwent a VA examination in July 2019, at which his diagnosis of chronic urticaria was noted. After reviewing the evidence of record, taking the appellant’s medical history, and performing an in-person examination, the examiner opined the appellant’s condition clearly and unmistakably pre-existed his active duty service. This opinion was based on a review of the in-service treatment records and the medical history collected by the examiner during the examination, including the appellant’s statements that the first time he developed the rash he was claiming service-connection for was prior to his enlistment in the Navy. The Board finds that the evidence of record shows that there is clear and unmistakable evidence that the appellant’s chronic urticaria preexisted service. The appellant’s service treatment records include statements by him that he was diagnosed with an allergic sensitivity to paint 6 years prior to his enlistment in the Navy. He then developed a rash in service after exposure to paint. Considering this, as well as the medical opinions of record, and absent any competent evidence to the contrary, the Board finds that the evidence clearly and unmistakably establishes that the appellant’s urticaria existed prior to his entrance onto active duty and that the presumption of soundness is rebutted. While the appellant has asserted that he believes his current condition is related to inhaling particulates during a fire while aboard the U.S.S. constellation, the Board finds that the appellant is not competent to offer an opinion on that question. The question of causation in this case is medically complex and requires an understanding of the interaction between multiple organ systems in the body and pathology. Therefore, it is outside the competence of the appellant in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, the Board affords the most probative weight to the opinion of the July 2019 VA examiner who determined that the appellant’s disability clearly and unmistakably existed prior to his period of active service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). With the evidence clearly and unmistakably establishing the appellant’s disability pre-existed his active service, the next question for the Board is whether the appellant’s disability clearly and unmistakably was not aggravated during his period of active duty service. VA 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). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Considering this standard, the Board finds that the evidence of record clearly and unmistakably shows that the disability was not aggravated by military service. In making this finding, the Board has considered the appellant’s service treatment records, which record a brief period of acute urticaria, with rash, itching, and shortness of breath in October 1988 after exposure to paint. The appellant has not contended that this disability continued to appear during his active service. There is nothing in the records that the underlying disability, as contrasted to the appellant’s symptoms, worsened during his period of active duty service. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); see also Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board has also afforded great probative weight to the opinion of the July 2019 VA examiner, on this question of aggravation. The examiner determined, after a review of the record, an examination of the appellant, and consideration of his medical history, that his disability was clearly and unmistakably not aggravated by service. In reaching this conclusion, the examiner relied on the medical history collected at the examination and during a review of the claims file, including appellant’s reports of symptoms during and prior to service, noting that the in-service occurrence of urticaria was no more severe than that which existed prior to service. Further, the examiner explained that the condition had continued to manifest similarly following service, again with no increase in underlying severity, which indicated that the condition had not been aggravated during service. In essence, the examiner opined, that the appellant’s disability merely manifested with an acute exacerbation of symptoms during service in direct response to paint exposure, which resolved, and did not recur during the rest of the appellant’s term of active service. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The examiner discussed the appellant’s assertion that his chronic urticaria is a result of exposure to a fire aboard the U.S.S. Constellation while the appellant was on active duty. The examiner rejected this theory because inhaled agents might cause upper and lower respiratory responses and would not cause a systemic response such as urticaria. Ultimately though, the examiner opined that the evidence clearly and unmistakably demonstrated the condition pre-existed the reported in-service fire exposure, as the condition existed prior to service. Here, the July 2019 VA opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is also shown to have been based on a review of the appellant’s record and is accompanied by a sufficient explanation as to why the appellant’s current theory of causation conflicts with the other evidence of record and is entirely speculative. As such, the Board thus affords the July 2019 VA opinion that the appellant’s disability of chronic urticaria clearly and unmistakably pre-existed his entrance onto active duty, and was clearly and unmistakably not aggravated during active duty service, significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board has considered the appellant’s contentions that he believes his chronic urticaria was a result of exposure to the fire aboard his duty ship in August 1988, and notes he is competent to describe events and symptoms he has personally experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the evidence of record does not demonstrate that the appellant is competent to offer an opinion on the etiology of his disability. There is no evidence that the appellant has the requisite knowledge, training, or experience to provide a competent opinion on this medically complex question, which involves an interaction between multiple body systems. As such, the Board affords greater probative weight to the July 2019 opinion which found the appellant’s disability was not incurred during service due to fire exposure. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Ultimately, considering this evidence, the Board finds that the appellant’s in-service chronic urticaria clearly and unmistakably was an acute exacerbation of symptoms of a pre-existing condition, an allergy to paint. Thus, his acute outbreak of chronic urticaria is clearly and unmistakably not an aggravation of his pre-existing condition. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The Board also finds that the appellant’s chronic urticaria clearly and unmistakably manifested with symptoms during service, but without any discernible increase in the underlying disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). After reviewing all the evidence of record, the Board finds that VA has met its high burden of showing by clear and unmistakable evidence both that the appellant’s chronic urticaria preexisted service and was not aggravated by such. Thus, the presumption of soundness and the presumption of aggravation are rebutted in their entirety. 38 C.F.R. § 3.304, 3.306. Therefore, the Board concludes that the criteria for service-connection for a pre-existing disability are not met. As the evidence is clearly and unmistakably against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 3.102. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, Associate 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.