Citation Nr: 21005116 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-28 527 DATE: January 29, 2021 ORDER Entitlement to service connection for left wrist disability is denied. Entitlement to service connection for non-allergic rhinitis is granted. FINDINGS OF FACT 1. A chronic left wrist disability was not shown in service and the Veteran’s current left wrist disability is not shown to be related to service. 2. The Veteran’s non-allergic rhinitis is reasonably shown to have been manifested during service and to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for non-allergic rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. In July 2019, the case was remanded for further development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed, chronic disabilities, including arthritis, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for left wrist disability. The Veteran alleges that his current wrist disability is related to a wrist injury during service. The Veteran’s service treatment records show that on his March 1986 enlistment examination, the Veteran’s upper extremities were found to be normal. On his March 1986 report of medical history at enlistment, the Veteran reported that he fractured the left ulna in September 1985. It was noted that the fracture was casted at the time and had healed. The Veteran was seen by medical personnel for a complaint of left wrist pain in April 1987. The Veteran reported that he heard a pop in the left wrist and experienced acute pain while doing push-ups that morning. He indicated that he had a history of the left wrist fracture in 1985. Physical examination showed that the wrist was tender dorsally without swelling or deformity. Wrist flexion was limited to 60 degrees and extension was full. The wrist was very tender to palpation at the joint line, ulnar aspect. An X-ray was performed, which produced a diagnostic impression of normal wrist. The diagnostic assessment was wrist sprain and the Veteran was provided with a splint to wear. At his February 1988 separation examination, the Veteran’s upper extremities were found to be normal and the Veteran reported that he was in good health. On his February 1988 report of medical history, the Veteran reported that he did have a previous wrist fracture in 1985. It was noted that he had intermittent discomfort in the wrist when weightlifting if he did not tape the wrist. An April 2013 private orthopedic clinic note shows that the Veteran reported pain in the left wrist in the area of the extensor carpi ulnaris. He was not feeling any clicking or locking. He did have problems with grip and there was no numbness. Physical examination showed tenderness over the extensor carpi ulnaris tendon. A wrist splint was prescribed. In a June 2013 statement, the Veteran reported that he initially broke his wrist in high school, that he reaggravated the wrist in the Army and that he still suffered with a painful and sore wrist. He indicated that he had recently seen an orthopedic specialist who recommended a cortisone injection to relieve the pain. He indicated that at times, his wrist limited his daily functions. The pertinent diagnostic assessment was other tenosynovitis of the left wrist. At a November 2013 VA wrist examination, the diagnostic assessment was status post left ulnar fracture-pre-service and triangular fibrocartilage complex (TFCC) tear of the left wrist. The Veteran reported that he fractured the left wrist when he was 17 and aggravated the wrist during active duty. He indicated that currently the left wrist was painful when he tried to lift heavy objects or moved his left wrist and denied any problems with his right wrist. He indicated that he took ibuprofen as needed for wrist pain. The examiner opined that the Veteran’s current TFCC tear/synovitis of the left wrist was not caused by any diagnosed condition during his active service. The examiner reasoned that there was no documentation in the service treatment records that the Veteran ever injured his wrist and that only recently had he been diagnosed as having TFCC tear/synovitis of the left wrist. In a January 2014 addendum opinion, the November 2013 VA examiner noted that the service treatment records did include a medical visit for left wrist pain in 1987, with a negative X-ray. The examiner also indicated that the Veteran’s recent diagnosis of TFCC tear/synovitis of the left wrist was not related to the negative x-ray and symptoms of popping sensation in the left wrist in 1987. The examiner indicated that the popping sensation was not a diagnostic criterion for an aggravation of pre-service fracture, and the recent diagnosis of TFCC/synovitis could not be causally related to the popping sensation since the popping sound was not a diagnosis. In a June 2014 notice of disagreement, the Veteran indicated that his wrist signs and symptoms along with his diagnosis of sprained left wrist while he was in the Army coincided with his recent diagnosed condition of a TFCC tear/synovitis in that the signs and symptoms of a TFCC tear/synovitis were: swelling, loss of grip strength, instability, and grinding or clicking (i.e. popping) sounds that could occur during use of the wrist. He indicated that he had all these symptoms during service and that he currently had all these symptoms. He noted that during service, his left wrist was noted to be very tender to palpation at the joint line ulnar aspect, which was consistent with a TFCC tear. He also noted that a TFCC tear would not show up on an X-ray, but it does show up on an MRI. Therefore, the Veteran indicated that an MRI should have been ordered for him during service. The Veteran contended that his left wrist tear/synovitis was directly related to or a residual of his left wrist pain during service as he believed that he had a TFCC tear when he was diagnosed with the left wrist sprain. At the March 2019 Board hearing, the Veteran testified that he injured his wrist during service doing pushups during PT. He indicated that he went to sick call, was sent for an X-ray, was provided with a left wrist splint and was instructed to take ibuprofen. The Veteran reported that he had taken non-steroidal anti-inflammatories for his left wrist pain off and on since that time but was told to back off on taking them more recently due to them interfering with his kidney function. The Veteran indicated that his wrist had hurt him since service up until the present day. In a January 2020 opinion, a VA contract physician, after reviewing the claims file, found that the Veteran’s left wrist disability is less likely than not related to his military service. The physician noted that in April 1987, the Veteran did experience left wrist pain and heard a pop with associated local tenderness noted in the area. The X-ray of the wrist was normal at that time and the Veteran received a splint with an instruction to return in 72 hours. There was no record of any follow-up care and then the Veteran’s separation examination showed normal upper extremities. Thus, there was no evidence that a chronic wrist condition developed during service. The above summarized evidence shows that the Veteran’s upper extremities were found to be normal during his enlistment examination and that he was not noted to have any pre-existing wrist disability at the time of entrance into service. Accordingly, for purposes of determining whether service connection is warranted for current left wrist disability, the Board considers the Veteran’s wrist to be sound upon entry into service. See 38 C.F.R. § 3.304. The evidence also shows that the Veteran did suffer the left wrist sprain during service. However, at his February 1988 separation examination, the Veteran’s upper extremities were found to be normal and he indicated that he was in good health, and on his February 1988 report of medical history, it was noted that he experienced only intermittent discomfort in the wrist while weightlifting if he did not tape the wrist before participating in this activity. Given the normal upper extremity finding at separation and given the Veteran’s report of discomfort only during weightlifting and only if he did not tape the wrist, a chronic wrist disability was not shown to have manifested during service. Post-service, there is no medical evidence of any wrist pathology until 2013, approximately 25 years after separation. This is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, after review of the claims file, the January 2020 VA contract physician specifically found that the Veteran’s current left wrist disability was less likely than not related to service, reasoning that the X-ray of the wrist after the August 1987 sprain was normal; that there was no indication that the Veteran required any follow-up care for the injury; and that the upper extremities were found to be normal at separation. Thus, there was no evidence that a chronic wrist condition developed during service. The Board notes that there is no opinion of record to the contrary; i.e. an opinion tending to indicate that the Veteran’s current left wrist disability is related to service. The Veteran has generally asserted that his current left wrist disability is related to his left wrist injury during service. However, as a layperson without any demonstrated expertise concerning the etiology of wrist disability, this general assertion may not be afforded more than probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, the Veteran testified that his left wrist continued to bother him on at least an intermittent basis from the time of his injury during service up until the present day. However, the Board notes that there is no record of any post-service medical treatment or evaluation for the wrist for a period of 25 years. At the same time, there are numerous records of the Veteran receiving treatment for other medical conditions during much of this 25-year period, including numerous medical records documenting treatment for respiratory conditions, as discussed below. The Board presumes that had the wrist been at least intermittently bothering the Veteran since service, he would have reported this to medical professionals who were treating him for other conditions prior to April 2013 and/or would have reported it to the treating medical professional in April 2013. Given the lack of such reporting in either instance, the Board does not find credible the Veteran’s report of continuity of symptomatology since service. In sum, a chronic left wrist disability was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the current left wrist disability is otherwise related to service. Accordingly, the preponderance of the evidence is against this claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for non-allergic rhinitis. The Veteran alleges that his current non-allergic rhinitis is related to his military service, including chemical exposures therein. The Veteran’s service treatment records show that at his March 1986 enlistment examination, his nose, sinuses, mouth, throat and ears were found to be normal. On his March 1986 report of medical history at enlistment, the Veteran reported allergies to bees and to Codeine. He also appeared to report that he did not have prior or current ear, nose and throat trouble, sinusitis or hay fever. The Veteran was seen by medical personnel in November 1986 for a complaint of sore throat. Then in December 1986, he was seen for post-nasal drip, sore throat and non-productive cough, which had been present for 6 to 8 weeks. The diagnostic assessment was pharyngitis. The Veteran was also seen by medical personnel in August 1987 for nasal congestion. The Veteran reported that this was a recurrent and life-long problem that was seasonal in nature. It was noted that the Veteran’s mother was receiving immunotherapy for allergic rhinitis. The provisional diagnosis was allergic rhinitis and the Veteran was referred for a consultation with a specialist. At the subsequent August 1987 consultation with an allergist, it was noted that the Veteran was seen for evaluation of possible allergic rhinitis. The Veteran reported chronic nasal problems his whole life. He described these problems primarily as a post-nasal drip with associated sore throat and sneezing. He indicated that at times, he would get a runny nose. He indicated that he did not have any seasonal history for this and did not know of any precipitants. Recently, he had been taking Actifed for his symptoms with some improvement. He also had been started on a nasal spray, Nasalide, also with some improvement. The Veteran reported that he was told as a child that he had sinus problems, but he never had any sinus X-rays or surgery. He also had no history of asthma and did have a history of a local reaction and passing out after a wasp sting. He reported no known allergies to foods and that taking Codeine had given him a rash in the past. He reported no history of hives, eczema or migraine headaches. It was noted that the Veteran’s mother had hay fever like symptoms and migraine headaches. It was also noted that the Veteran lived in the barracks and had air conditioning that did not work too well. He had a regular mattress without allergy cover and a feather pillow. He had a roommate that smoked. Physical examination showed that the Veteran was in no acute distress. The Veteran’s tympanic membranes were clear, and his eyes were normal. The Veteran’s nose was also normal, and his lungs were clear. Skin testing for allergies was entirely negative and there was a positive histamine control. The allergist diagnosed the Veteran with perennial non-allergic rhinitis. On his February 1988 report of medical history, the Veteran indicated that he was in good health. He appeared to indicate that he did not have a prior history of ear nose and throat trouble and sinusitis. It was noted that the Veteran had reported a history of hay fever, usually seasonal and that over the counter medication provided good relief for this. He also reported an allergy to codeine in that it caused a rash. At his February 1988 separation examination, the Veteran’s nose, sinuses, mouth, throat and ears were found to be normal. Private medical records from September 1990 to July 2011 show that the Veteran received fairly frequent treatment for upper respiratory problems with multiple medical visits most every year. Sinusitis was specifically diagnosed as early as 1997 and allergic rhinitis was specifically diagnosed as early as 2000. In a June 2013 statement, the Veteran reported that he had long suffered with non-allergic rhinitis during and after the Army. He reported that he had chronic post-nasal drip year-round. The Veteran also reported that he had had numerous sinus infections that he still suffered with. He indicated that he got ear infections and was always excreting mucus out of his mouth that came from his post-nasal drip. At a November 2013 VA upper respiratory examination, the diagnosis was allergic rhinitis. The Veteran reported that he was experiencing chronic nasal congestion, drainage and recurrent sinusitis. He stated that he had been taking an antihistamine to treat the problem. Physical examination showed that the left nasal mucosa was minimally erythematous without sign of infection, exudate or edema. There was no tenderness in the ethmoid, frontal or maxillary sinus areas. After examination, the examiner opined that the Veteran’s currently claimed allergic rhinitis was not caused by any diagnosed condition during active duty. The examiner commented that the Veteran’s service treatment records showed no record of sinusitis or allergic rhinitis even though his post service private medical records showed upper respiratory symptoms and sinusitis for the past 5 years. Therefore, the Veteran’s current symptoms had developed much after his separation not during his active duty. In a January 2014 addendum opinion, the VA examiner again opined that the Veteran's currently claimed chronic allergic rhinitis/sinusitis was less likely as not caused by his diagnosed condition during his active duty. The examiner reasoned that the Veteran was diagnosed as having perennial nonallergic rhinitis during his active duty. According to the literature reviews, chronic nonallergic rhinitis (NAR) was not a specific disease, but rather a syndrome diagnosed by excluding other disorders. The examiner noted that patients with NAR often exhibit a clinical hypersensitivity to odors, the neurogenic responses to chemical/olfactory stimuli. Respiratory irritants (e.g. cigarette smoking, strong scents, and fragrances) are prominent inducers of symptoms. Weather changes and heated or spicy foods could also induce watery rhinorrhea. The examiner noted that this Veteran was diagnosed as having nonallergic perennial rhinitis in 1987 and then there was no further record to show whether he was chronically experiencing the symptoms even after his separation. The examiner indicated that the next record of treatment was in 2009 when the Veteran’s primary care doctor diagnosed him as having sinusitis. The examiner commented that nonallergic perennial rhinitis was alleviated with removal of offending agents. Since there had been no record of nonallergic rhinitis since the Veteran’s separation in 1988, there was no causal relationship between the Veteran’s current allergic rhinitis/sinusitis/pharyngitis and his diagnosed condition during his active duty. In a June 2014 notice of disagreement, the Veteran referred to the immunology consultation he received in August 1987. He noted that at that consultation, he received tests and was diagnosed with non-allergic rhinitis. The Veteran emphasized that the VA examiner’s opinion focused on allergic rhinitis but that his claim is for non-allergic rhinitis/sinusitis and that he did not make a claim for allergic rhinitis/sinusitis. The Veteran indicated that he had suffered with the diagnosed condition of non-allergic rhinitis/chronic sinusitis during military service and had continued to suffer from service until the present. Moreover, the Veteran asserted that non allergic rhinitis cannot be cured but can be controlled, citing a WebMD article, which he submitted. The Veteran indicated that the condition affected his ability to work and to hold gainful employment because he would get numerous flare ups of non-allergic rhinitis and/or sinus infections, which caused him to miss much time from work. The Veteran also noted that he was submitting records dating back to December 1989 to the current day showing a continuous history of chronic nasal/upper respiratory conditions/non-allergic rhinitis/chronic sinusitis. In a March 2019 opinion, a private otolaryngologist noted that he had reviewed the Veteran’s service treatment records and treatment records since the Veteran’s separation from service. He also noted that he had examined the Veteran and diagnosed him as having chronic rhinitis. The otolaryngologist opined that the rhinitis was at least as likely as not caused by or a result of chemical exposures during service. The otolaryngologist commented that the Veteran reported worsening of his rhinitis since his military service above his baseline congestion when he entered. At the March 2019 Board hearing, the Veteran testified that the symptoms of his rhinitis during service really got exacerbated when he went through the gas chamber/use of gas mask exercise. He noted that after this exercise the problem would flare-up off and on. He indicated that his flare-ups included symptoms of sneezing, coughing, teary eyes and red eyes. He noted that sometimes the symptoms would progress to a sinus infection. He reported that he almost always experienced post-nasal drip. He also testified that he had seen medical personnel off and on for the problem since service. The Veteran reported that currently he would receive treatment for the problem with antibiotics if it progressed to the point of infection requiring antibiotics. He would also take cough medicine and Tylenol for a fever. Moreover, the Veteran’s representative indicated that the Veteran was currently seeing a physician that specialized in treating rhinitis and that he had provided a nexus statement from that physician. In a January 2020 opinion, a VA contract physician found, after reviewing the claims file, that the Veteran’s rhinitis was less likely than not incurred in or caused by an injury, event or illness during service. The examiner indicated that the Veteran’s non-allergic rhinitis was less likely than not related to his military service, to include exposure to gas. The examiner noted that there was a diagnosis of non-allergic rhinitis made in August 1987 but there was no indication that the rhinitis stemmed from any chemical exposure. The examiner also noted that non-allergic rhinitis can lead to the development of nasal polyps, which grow inside the sinus or nasal passage causing sinus problems such as infection or inflammation. The examiner indicated that the Veteran’s report of medical history at separation noted hay fever, usually seasonal that was treated by over the counter medications with good relief. The examiner indicated that there was no evidence in the service treatment records that the rhinitis was secondary to a chemical exposure in service as the Veteran had reported that he had had chronic nasal problems all his life. The above summarized evidence shows that the Veteran’s nose, sinuses, mouth, throat and ears were all found to be normal at his March 1986 entrance examination and he was not otherwise found to have any pre-existing rhinitis upon entrance into service. Accordingly, for purposes of determining whether service connection is warranted for current rhinitis, the Board considers the Veteran to have been sound upon entry into service. See 38 C.F.R. § 3.304. During service, the Veteran was given a full work up by an allergist and diagnosed with non-allergic rhinitis. Then, post-service, he began to receive continued treatment for respiratory problems as early as 1990, including for some of the same symptoms he experienced during service (e.g. pharyngitis). Additionally, in the March 2019 opinion, the private otolaryngologist found that the Veteran had current rhinitis and opined that the disease was at least as likely as not related to chemical exposure during service. Notably, in the January 2020 opinion, the VA contract physician found that the Veteran’s non-allergic rhinitis was less likely than not related to his military service, to include exposure to gas, noting that there was a diagnosis of non-allergic rhinitis made in August 1987 but there was no indication that the rhinitis stemmed from any chemical exposure; that the Veteran’s report of medical history at separation noted hay fever, usually seasonal that was treated by over the counter medications with good relief; that there was no evidence in the service treatment records that the rhinitis was secondary to a chemical exposure in service; and the Veteran had reported that he had had chronic nasal problems all his life. Once again, the Board notes that the Veteran has been determined to be sound on entry (i.e. no pre-existing rhinitis). Thus, the examiner’s reasoning that his current non-allergic rhinitis is less likely than not related to service because he had had nasal problems all his life is not adequate (i.e. for purposes of his service connection claim, he must be presumed to have been free from nasal problems upon entry). Also, although the examiner was correct that the service treatment records do not reference the non-allergic rhinitis being brought about by exposure to gas, the records nonetheless show a specific diagnosis of non-allergic rhinitis rendered by a specialist (i.e. an allergist). Also, the March 2019 otolaryngologist’s opinion (i.e. also an opinion rendered by an expert on rhinitis), more generally indicates that the Veteran’s rhinitis is at least as likely as not related to chemical exposure in service, but did not specifically associate it with the Veteran’s reported gas exposure. (Continued on the next page)   Also, at the consultation with the allergist during service, it was noted that he had a roommate who smoked. In sum, given the specific diagnosis of non-allergic rhinitis by a specialist during service; the relative continuity of treatment for respiratory symptoms since service; the lack of a fully adequate rationale for the negative opinion provided by the January 2020 contract examiner; and the general, positive opinion provided by the private medical expert (i.e. otolaryngologist), which also included a current diagnosis of rhinitis, the evidence is at least in equipoise as to whether the Veteran’s non-allergic rhinitis is related to service. Accordingly, resolving any reasonable doubt in the Veteran’s favor, service connection for non-allergic rhinitis is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.