Citation Nr: 21002034 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-28 023 DATE: January 12, 2021 ORDER Entitlement to service connection for allergies and/or allergic rhinitis is denied. FINDING OF FACT The Veteran’s allergies and allergic rhinitis were not caused or aggravated by service and are not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for allergies and/or allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran presented testimonial evidence at a Board hearing held via videoconferencing equipment before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2018, the Board remanded this matter for additional development. In the February 2020 supplemental statement of the case (SSOC), the RO framed the issues as requiring new and relevant evidence for readjudication, but the Board already found new and material evidence for the issues in the April 2018 decision and reopened them. Therefore, new and relevant evidence or new and material evidence is not required, and the Board may consider the issues on the merits. Most recently, in October 2020 the Board remanded this matter for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§ 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380. Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease clearly and unmistakably existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for allergies and/or allergic rhinitis The Veteran contends that his allergies and/or allergic rhinitis were aggravated and made worse during service. Specifically, he indicated that he entered service with a mild case of hay fever and the harsh environment exacerbated his condition. He explained that he had to start taking injections at the clinic for his condition. 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). The Veteran’s appeal is based on the period of active duty from May 1966 to April 1968. The Board acknowledges the Veteran’s assertions that his preexisting allergies and/or allergic rhinitis increased in severity during his active service. He is considered competent to report his in-service symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to opine as to whether it was aggravated beyond its natural progression during active service, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements are not probative in that regard, and the Board turns to the competent medical evidence of record to determine whether the Veteran’s preexisting condition was aggravated during his active service. The Veteran’s November 1965 entrance examination reveals a notation of the Veteran’s sinusitis, and hay fever. The Veteran reported that he was in “fair health.” The Veteran also reported, had or having; whooping cough; ear, nose or throat trouble; chronic or frequent colds; pain or pressure in chest; chronic cough; jaundice; recent gain or loss of weight, car, train, sea or air sickness; frequent trouble sleeping; and nervous trouble of any sort. The examiner also noted that the Veteran’s allergies cause headaches, and that he is on medication. The Veteran’s service treatment records show that the Veteran reported a long history of allergies and sinusitis prior to service. He has difficulties primarily between April and September each year. There are several entries related to the Veteran’s allergies throughout his treatment records. See May 1967, June 1967, July 1967, December 1967 Service Treatment Records. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). In October 2010, the Veteran was afforded a VA examination for his allergies and/or allergic rhinitis. The examiner opined that the Veteran had perennial allergic rhinitis that at least as likely as not is a continuation of the allergy condition that began in his teen years, and was treated in service, but stated that it was less likely than not that the Veteran’s allergic rhinitis was caused by or a result of treatment during service. It was acknowledged that the Veteran was treated in the allergy clinic with shots for two years while in service, but the examiner found that the treatment in service helped to reduce the allergic rhinitis symptoms. In April 2017, the Veteran testified at a Board hearing regarding his allergies. He testified that he had minor coughs and colds. However, his condition became debilitating to the point that the “drainings, the headaches didn’t cease.” His skin was tested for allergies and 14 of the 28 tests were positive for allergies. The Veteran indicated he was on sick call about once a month. He testified that “you didn't go to sick bay unless you actually had to be in sick bay, that made you a girlie guy.” However, he testified that once he started taking the injections then it helped with his symptoms. He testified that his injections had to be reformulated and made stronger over time. In October 2019, the Veteran was afforded a VA examination for his allergies and/or allergic rhinitis condition. The examiner noted that the Veteran had pre-existing allergies, which persisted perennially throughout service. The examiner indicated that the Veteran had acute viral infections, which were known to cause congestion, but resolved following resolution of the infection. For example, in 1967, the Veteran had swollen turbinates, as a result of a viral infection, which were resolved. The examiner explains, There is no evidence of aggravation because his separation exam shows a normal nose/sinus exam, and therefore no aggravation can be established. An acute viral illness does not count towards an allergy aggravation, as acute viral illnesses are mediated by the immune system in response to an infectious agent and not mediated by allergens. In October 2020, VA obtained an addendum medical opinion to clarify the etiology of the Veteran’s allergies and/or allergic rhinitis conditions and his pre-existing conditions. The examiner opined that it is clear and unmistakable that the Veteran’s allergies/allergic rhinitis existed prior to the Veteran’s entry into military service and were not aggravated (beyond the normal progression of the disorder) by service. As to the rationale, the examiner explains that there is documentation that the Veteran had allergies prior to enlistment, with symptoms of allergic rhinitis in service, which is part of the natural progression of this condition. The examiner stated that the Veteran received treatment during service for his allergy including shots, which is part of the conventional treatment. The examiner also stated that the separation examination did not show any aggravation beyond natural progression. Finally, the examiner explained, Episodes of acute upper respiratory infections while in service are also acute and does not represent aggravation. Even taking in account that veteran had ongoing treatment for 5 or more years after separation, this represent[s] part of the natural progression. The allergic rhinitis, with perennial allergies are chronic conditions that need ongoing treatment, and this is part of the natural progression of the preexisting condition. There is [no] evidence of aggravation of this condition during the service. As the most competent and credible evidence of record does not show an increase in the severity of allergies and or allergic rhinitis during service the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing allergies and or allergic rhinitis was not aggravated by military service entitlement to service connection must be denied. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for allergies and/or allergic rhinitis. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.