Citation Nr: 21074022 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-52 170 DATE: December 14, 2021 ORDER Service connection for a nasal disorder, diagnosed as allergic rhinitis, is denied. FINDINGS OF FACT 1. The Veteran's allergic rhinitis was not "noted" at service entrance and did not clearly and unmistakably pre-exist service. 2. The Veteran's currently diagnosed allergic rhinitis was not incurred in service and is not otherwise related to service, to include an in-service dental procedure. CONCLUSION OF LAW The criteria for service connection for a nasal disorder, to include allergic rhinitis, are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1994 to November 1997 with additional service in the United States Army National Guard from May 2000 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision. The Board remanded this matter for further evidentiary development in December 2018 and July 2021. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Allergic Rhinitis The Veteran maintains that he has allergic rhinitis that is related to service, to include as a result of an in-service dental procedure. The Veteran is not currently service connected for any disability. The Board notes that, when no pre-existing disorder is noted upon entry into service, a veteran is presumed to have been in sound condition upon entry and the presumption of soundness arises. 38 U.S.C. § 1111. In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarized the effect of 38 U.S.C. § 1111 on claims for a service-connected disability and held that where the veteran is presumed to have been sound upon entry, the correct standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 is a showing of clear and unmistakable evidence that (1) the veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. The Federal Circuit's holding in Wagner has been codified under 38 C.F.R. § 3.304. Consequently, if a disability was not noted at the time of entry into service and VA fails to establish by clear and unmistakable evidence either that the disability existed prior to service or that it was not aggravated by service, the presumption of soundness will govern. Initially, the Board finds that no sinus, nose, or allergic rhinitis disability was noted at the Veteran's entry into service. See October 1993 Report of Medical Examination. Therefore, the Veteran must be presumed as having been sound at the time of his enlistment. This presumption can be rebutted by only clear and unmistakable (i.e., undebatable) evidence to the contrary. The only evidence of record which even suggests that the Veteran had a pre-service history of allergic rhinitis is the Veteran's own lay statements. See e. g., June 2015 VA examination report (Veteran indicated that he had allergic rhinitis "all of his life," especially while in high school). These lay statements by the Veteran are not substantiated by any pre-service treatment records, nor has the Veteran expressly identified any such pre-service treatment. Moreover, the Veteran's statements are inconsistent with the total absence of any allergic rhinitis findings during his enlistment examination or in service treatment records. Under the circumstances, the Board concludes that the evidence does not clearly and unmistakably show that the Veteran had allergic rhinitis problems prior to his enlistment into service. The Board notes that an August 2021 VA examiner found that the Veteran's allergic rhinitis clearly and unmistakably preexisted service but this was based entirely on the Veteran's lay statements. The examiner acknowledged that there were no medical records to support this. The Board does not find the examiner's opinion probative in light of the high clear and unmistakable evidence standard necessary to rebut the presumption of soundness. As such, the Veteran is presumed to have been sound at the time of his enlistment and the Board will not endeavor in any consideration of whether there was any in-service aggravation of a pre-existing disorder. Next, the Board finds that, while the Veteran has been diagnosed with allergic rhinitis, the Veteran's disorder was not sustained during his active duty service and is not related to an injury, illness, or event that occurred during service, to include an in-service dental procedure. Service treatment records include a November 1995 Hearing Conservation Examination form where the Veteran checked "YES" as to having "sinus problems," but he denied having any allergies. There was no further indication as to the exact nature of the Veteran's sinus problems. In a December 1994 record, the Veteran was treated for exudative pharyngitis and, although he complained of nasal congestion, treatment received was not for allergic rhinitis, but a for a bacterial infection. In a Dental Patient Medical History dated in July 1996, the Veteran reported "sinus congestion, pain in the right side when running," but there was no record of any active rhinosinus intervention, in this regard. The remaining service records are absent for any complaints, diagnoses, or treatment for allergic rhinitis or other sinus conditions. In a July 1997 Report of Medical Assessment, conducted two months prior to service separation, the Veteran indicated that he was in "good health," and denied suffering from any injury or illness while on active duty. He also denied any dental problems or other concerns about his health. The Veteran further checked "NO" as to taking any medications, to include (for instance) allergy medication. Following active duty service, in a National Guard-related Report of Medical History dated in June 2006, the Veteran denied a history of "Sinusitis," "Hay fever," or "Ear, nose, or throat trouble." VA also obtained medical opinions in October 2019 and August 2021 regarding the likely etiology of the Veteran's allergic rhinitis. The 2019 VA examiner opined that the Veteran's allergic rhinitis was not related to service. In this regard, the examiner stated that the Veteran's current signs and symptoms of allergic rhinitis were due to ongoing exposure to allergic triggers, allergens that were endemic to Mississippi and the Southeastern U.S., and not due to exposure to allergens that were unique to his military duty tenure or to any remote deployment exposure. The 2021 VA examiner similarly opined that the Veteran's allergic rhinitis was not related to service. In support of this opinion, it was noted that the signs and symptoms of allergic rhinitis were provoked by the degranulation of mast cells in the nasal mucosa that came in contact with specific environmental allergens, which could be considered the triggers of an inflammatory response. Current signs and symptoms of allergic rhinitis were due to ongoing exposure to allergic triggers, allergens that were endemic to his current place of residence and not due to exposure to allergens that were either unique to his military duty tenure or to any remote deployment exposure injury, or episode of care. The examiner also indicated that allergic rhinitis was not caused by any sort of dental procedure, such as the in-service surgical removal of the Veteran's impacted teeth. Likewise, while concurrent bacterial infection, such as the Veteran's in-service episode "exudative pharyngitis" might lead to nasal congestion, the pathoetiology of the mucosal inflammation was separate and distinct from that caused by exposure to an allergen, and would not cause any underlying allergic sensitization. The Veteran has not provided a competent opinion favorable to his claim. The Board considered the Veteran's own statements purporting to relate his currently diagnosed allergic rhinitis to in-service dental treatment. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to render a competent opinion regarding the cause of his allergic rhinitis disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). To the contrary, the VA medical examiners noted above possess the requisite medical training and provided competent and adequate etiology opinions, which the Board has found probative. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for allergic rhinitis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.