Citation Nr: 21062568 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 10-02 470 DATE: October 8, 2021 REMANDED Entitlement to service connection for allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. To assist with adjudication of the matters listed above, the Board will provide a brief, historical summary. In October 2018, the Board remanded the issue of service connection for a pulmonary disability, to include allergic rhinitis, since it found that the November 2017 VA examination was inadequate because the examiner opined that the claimed conditions were not related to service since they were diagnosed many years after service. The examiner cited to medical literature in support of the opinion but did not identify the relied upon medical literature. Additionally, the examiner did not discuss secondary service connection. Finally, in December 2021 the Board bifurcated the claim for service connection for a lung/respiratory disability to distinguish between a respiratory disability and a sinus disability. Subsequently, the Board denied service connection for a respiratory disability and remanded the issue on appeal of service connection for allergic rhinitis. The Board found the October 2019 VA examination inadequate because it relied on a lack of in-service diagnosis, did not cite to specific medical evidence of record or medical history of this Veteran to justify his conclusion, and did not discuss secondary service connection as per the October 2018 Board remand directive. After a May 2021 supplemental statement of the case considered the record, this matter has now returned to the Board for appellate consideration. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for allergic rhinitis. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he developed progressive rhinitis, congestion, and sneezing while in service, he did not undergo any treatment at that time, and he continues to have symptoms of rhinitis and sneezing. See 1/9/2020 C&P Examination; see also 12/14/2020 CAPRI, at page 32. As stated above, this issue has been remanded several times in the past. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the December 2020 Remand directives, to obtain an opinion whether the current rhinitis disability was caused or aggravated by the Veteran's now service-connected restrictive lung disability. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Substantial, not strict, compliance is needed. During a May 2021 VA addendum opinion, the clinician opined that the Veteran's allergic rhinitis was less likely than not incurred in or caused by service. As rationale, the examiner stated that the Veteran's separation examination did not show a diagnosis or treatment for any allergic rhinitis disability. The clinician further stated that the Veteran was diagnosed with allergic rhinitis in October 2019, many decades after service. Additionally, the clinician stated that there is insufficient evidence that the Veteran's current allergic rhinitis disability is associated with service. See 5/18/2021 C&P Examination. The Board finds this opinion inadequate. The examiner stated that the Veteran was diagnosed with allergic rhinitis decades after service; however, the examiner did not explain its importance. Additionally, the examiner did not discuss the Veteran's contentions that he developed progressive rhinitis, congestion, and sneezing since service and that he continues to have symptoms. Further, the examiner did not discuss secondary service connection as per the October 2020 Board remand directive. Therefore, the Board finds that an addendum opinion is required to determine if the Veteran's allergic rhinitis disability was caused by service or was proximately due or aggravated by a service-connected disability. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. After completion of step #1, return the claims file to another examiner different from the one that authored the October 2019 respiratory addendum opinion. A copy of this remand request should also be provided. After a review of the claims file and previous opinions, the examiner must address: (a.) Whether it is at least likely as not (probability of 50 percent or more) that the Veteran's current rhinitis disability manifested during or is otherwise related to the Veteran's period of active service. (b.) Whether it is at least as likely as not (probability of 50 percent or more) that the current rhinitis disability was either 1) proximately due to OR 2) aggravated (i.e., worsened beyond the normal progression of that disease) by any service-connected disability, to include the restrictive lung disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. **In doing so, please address the Veteran's contentions that he developed progressive rhinitis, congestion, and sneezing while in service, that he did not undergo any treatment at that time, and that he continues to have symptoms of rhinitis and sneezing. See 1/9/2020 C&P Examination. Additionally, please address the importance of the fact that the Veteran's allergic rhinitis disability was diagnosed decades after service. See 5/18/2021 C&P Examination. Furthermore, the examiner must provide specific evidence of record to support his conclusions, such as references from this Veteran's relevant medical history and/or medical literature.** (Continued on the next page) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.