Citation Nr: 21074221 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-20 131 DATE: December 14, 2021 ORDER Entitlement to service connection for allergies is denied. REMANDED Entitlement to service connection for bilateral hand disability, to include limitation of use is remanded. FINDING OF FACT The preponderance of the evidence is against finding that allergies began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for allergies have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from November 1983 to April 1990. These matters were previously before the Board, which issued a decision in March 2021. In that decision, the Board reopened the claims for entitlement to service connection for allergies and entitlement to service connection for bilateral hand condition, to include limited use. The Board then remanded the issues to obtain VA examinations and medical opinions. VA examinations were completed in June 2021, and the VA examiner issued corresponding medical opinions. The RO issued a supplemental statement of the case in July 2021. The case now returns to the Board for further proceedings. The Board notes that, with regard to the Veteran's claim for entitlement to service connection for allergies, the Board is satisfied there was substantial compliance with the March 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). However, with regard to the Veteran's claim for entitlement to service connection for bilateral hand disability, the March 2021 remand directives were not satisfied, and further action is required as described in further detail below. Id. The Board also notes that the RO issued a rating decision in November 2021 that found no new and material evidence to reopen the claims for entitlement to service connection for allergies and entitlement to service connection for bilateral hand condition, to include limited use. This rating decision was issued in error, as these issues were already a part of the active appeal stream that led them to this Board decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones v. Brown, 7 Vet. App. 134 (1994). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Entitlement to service connection for allergies. The Veteran contends his allergies started in service and that they started because of exposure to fumes and smoke. The Veteran stated he was a diesel mechanic in service, and he was exposed to fumes that led to allergic rhinitis. He contended pollen affects him and he gets a cough. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for allergies. The reasons follow. The Veteran has been diagnosed with allergic rhinitis, and thus there is evidence of a current disability, and the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the service treatment records (STRs) did mention allergies in service. In a July 1984 STR, the Veteran complained of hay fever and was noted to have a cough and sneezing. The Veteran complained of hay fever again in June 1985 and he was diagnosed with hay fever. Accordingly, the in-service disease or injury element is met. However, as to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, in a January 1986 STR, the Veteran complained of a fever, cough, and runny nose, but was noted to have no known allergies. June 1986 STRs showed the Veteran reported sinus problems including chest congestion and runny nose, but allergies and hay fever were ruled out. In a February 1988 STR, the Veteran stated he had hay fever and he had sinus problems that were bothering him. On examination, the Veteran's nose was described as clogged when inhaling, but the Veteran was only assessed to have a possible throat infection. At his February 1990 separation exam, the Veteran showed normal nose and sinuses, and there was no mention of allergies. The lack of treatment of allergy symptoms and the normal findings at discharge from service are probative evidence, as they suggest the Veteran's 1984 and 1985 allergy conditions did not have a lasting impact on the Veteran and are evidence against a nexus to the Veteran's current allergy disability. Post-service medical records did not mention allergies until a November 2009 VA treatment record, which noted the Veteran reported no known allergies. The Veteran reported no known allergies in the majority of the VA treatment records including in July 2016, August 2016, February 2017, April 2017, May 2017, July 2017, September 2017, December 2017, January 2018, March 2018, April 2018, June 2018, July 2018, September 2018, March 2019, July 2019, September 2019, November 2019, December 2019, May 2020, June 2020, November 2020, April 2021, May 2021, and June 2021. The Board affords high probative value to the Veteran's reporting of no known allergies, as he has consistently reported this over a number of years. This consistent reporting of no known allergies weighs heavily against the Veteran's claims that he had allergies related to service. Also weighing against the Veteran's claim that he has allergies related to service is the absence of reporting complaints, diagnosis, or treatment for allergies until the Veteran submitted his claim in June 2009, which is over 19 years following service discharge. In fact, VA treatment records do not show evidence of diagnosis or treatment of allergies until the Veteran was prescribed allergy medication in March 2017, which is almost 28 years following service discharge. VA treatment records do not contain a diagnosis of allergic rhinitis for another three years until June 2020. The absence of reporting of allergies, treatment of allergies, and diagnosis of an allergy condition for such significant amounts of time since service discharge is evidence against a nexus between the post-service upper respiratory symptoms and service. In the June 2021 VA medical opinion, the examiner opined that that the Veteran's allergic rhinitis was less likely than not incurred in or caused by the in-service injury, event, or illness. The VA examiner noted the Veteran was treated for allergies two times in six years of service. She highlighted that the Veteran did not receive continuing care for allergies and was not treated for allergies for his last 5 years of service. The examiner also explained the Veteran was treated for allergic rhinitis in 2020, but that over 30 years after service. This opinion establishes that the Veteran's allergies are not related to service. The VA examiner's findings are consistent with what is documented in the service treatment records and post-service medical records, which show the Veteran did do not show evidence of allergy treatment following his June 1985 treatment, and the Veteran was not diagnosed with allergic rhinitis after service until June 2020. The consistency of the June 2021 VA examiner's analysis and findings with the rest of the medical record further supports that opinion and the finding of a lack of nexus between the post-service upper respiratory disability and service. Although the Veteran claims that his allergies started in service, he is not competent to directly link the post-service diagnoses of allergic rhinitis to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence to weigh against the negative June 2021 VA opinion, and the nexus element of a service-connection claim is not met. The Board has considered the Veteran's contentions. In a September 2009 submission, the Veteran stated he developed allergies to chemicals and certain scents that were caused by going through a gas chamber many times. There is no mention in STRs of the Veteran having any allergies due to exposure to a gas chamber. Additionally, there is no mention in VA treatment records of any allergy disability being related to exposure to a gas chamber. Contrarily, the Veteran testified at a July 2013 hearing that his allergies were seasonal. He also testified they began in service because of exposure to fumes and smoke. At the June 2021 VA exam, the Veteran detailed that he was a diesel mechanic in service and was exposed to fumes, which he believes led to his allergic rhinitis. The inconsistency of the Veteran's contentions weighs against their credibility. Further, the Veteran's contentions are not consistent with the STRs. As detailed above, STRs showed the Veteran was treated for allergies twice in service in 1984 and 1985, but was not treated for allergies for the last five years of his active service. Additionally, the report of medical examination at service discharge showed the Veteran had normal nose and sinus findings with no mention of allergies, which suggests the Veteran did not have an allergy disability at the time of service discharge. Subsequent VA treatment records also weigh against the Veteran's contentions. The record is absent for complaints or treatment of any allergy disability for more than 19 years until the Veteran filed a claim for service connection. The absence of evidence of even a complaint or that the Veteran sought treatment for such a significant amount of time suggests the Veteran did not have an allergy disability during that period. Indeed, the Veteran reported no known allergies during a significant portion of the VA treatment records and did not receive any treatment for allergies until March 2017 and was not diagnosed with allergic rhinitis until June 2020. Thus, the Board affords more weight to the findings of the VA examiner, which are consistent with the Veteran's own reporting of no known allergies or symptoms in VA treatment records and the lack of a diagnosis until June 2020. The VA examiner offered a detailed discussion of the Veteran's history of allergy diagnosis and treatment after considering the Veteran's contentions and the full medical record. The Board finds this considerably more probative than the contentions made by the Veteran with no supporting evidence. In sum, for all the reasons laid out above, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for allergies. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. REASONS FOR REMAND Entitlement to service connection for bilateral hand disability, to include limitation of use is remanded. Regrettably, Board finds remand is necessary to afford the Veteran an adequate examination. Specifically, the examiner at the April 2020 VA examination did not provide a consistent opinion as to whether it is as likely as not any of the Veteran's service-connected disabilities aggravated a bilateral hand condition. The June 2021 VA examiner contradicted herself in the aggravation portion of the secondary service connection opinion. In the response to question 6A.III., the VA examiner checked the boxed for "[y]es" in response to the questions, "[i]s the current severity of the (claimed condition/diagnosis) greater than the baseline?" and "[i]f yes, was the Veteran's (claimed condition/diagnosis) at least as likely as not aggravated beyond its natural progression by (insert "service connected condition")?" Thus, the VA examiner seems to be offering a positive nexus opinion for a bilateral hand disability. Indeed, in the rationale section (6B), the examiner stated, "a link between the Veteran's bilateral hands and his service-connected conditions could be supported." However, the examiner then offers a negative nexus opinion in the rationale section, stating, "[t]he veteran's bilateral hand condition is less likely than not aggravated beyond its natural progression by the veteran's conditions to include: painful scars, bilateral hands, type II diabetes, hypertension, nonlinear scarring right hand and nonlinear scarring left hand." This inconsistency requires clarification. Additionally, the VA examiner stated in the direct service connection portion of the opinion rationale in section 3C. that the Veteran did not have "any complaints of hand pain, weakness or loss of dexterity. The service treatment records did not reveal any injuries to his hands or fingers." However, the VA examiner did not mention the Veterans military occupational specialty (MOS) as a mechanic and whether that could have caused the Veteran's hand condition. Notably, the March 2021 Board remand stated, "the Veteran's service treatment records and the Veteran's lay testimony noted his limitation in the use of his hands started while in service due to the wrenches he used as a mechanic." Thus, it is necessary for an examiner to consider the Veteran's MOS in offering an opinion about service connection for a bilateral hand disability. The matters are REMANDED for the following action: Refer the Veteran's file to an appropriate examiner for an addendum opinion. The examiner should review the Veteran's claims file. If the examiner finds that an in-person examination is warranted, then schedule an examination. The agency of original jurisdiction is asked to provide the examiner a copy of the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: The Veteran served in the Army from November 1983 to April 1990. The Veteran is service connected for painful scars, bilateral hand associated with verruca vulgaris (warts) and pseudofolliculitis barbae; type II diabetes mellitus associated with hypertension; left knee strain; tinnitus; hypertension; nonlinear scarring, right (dominant) hand associated with verruca vulgaris (warts) and pseudofolliculitis barbae; nonlinear scarring, left (non-dominant) hand associated with verruca vulgaris (warts) and pseudofolliculitis barbae; and verruca vulgaris (warts) and pseudofolliculitis barbae. The Veteran's military occupational specialty in service was a wheel vehicle repairer. See VBMS entry with document type, "Certificate of Release or Discharge From Active Duty," receipt date 06/05/2017, p. 1. In a February 1990 report of medical examination at separation from service, the Veteran showed normal findings including normal upper extremities. See VBMS entry with document type, "STR-Medical," receipt date 05/11/2010, p. 6. A July 2021 x-ray of the bilateral hands showed unremarkable findings. See VBMS entry with document type, "C&P Exam," receipt date 07/25/2021, p. 1. The Veteran reported in February 2009 that he had limited use of his hands. He stated he could not close his hands all of the way. See VBMS entry with document type, "Correspondence," receipt date 02/04/2009, p. 1. See also VBMS entry with document type, "Correspondence," receipt date 09/04/2009, p. 2. The Veteran's friend stated in March 2010 the Veteran had problems with his hands and had not been able to close his hands all of the way in about 24 years. See VBMS entry with document type, "Buddy/Lay Statement," receipt date 03/16/2010, p. 1. The Veteran's wife stated he could not help with normal tasks around the house because the Veteran had knots on the inside of his hands that hurt. She said the Veteran could not due maintenance on cars because holding tools in his hands was painful due to the calluses on his hands. See VBMS entry with document type, "Buddy/Lay Statement," receipt date 03/16/2010, p. 1. The Veteran testified at a July 2013 hearing that he feels like he cannot close his hands all of the way due to all of the mechanical tools required to use as a diesel mechanic that caused scars and he had warts. He stated the dexterity of his fingers has diminished. He offered similar statements in a June 2021 VA examination. See VBMS entry with document type, "Hearing Testimony," receipt date 07/14/2013, p. 4. See also VBMS entry with document type, "C&P Exam," receipt date 06/17/2021, p. 3. Following a review of the evidence, the examiner is asked to answer the following questions: a) Is it at least as likely as not (a 50 percent probability or more) that the Veteran has a bilateral hand disability which had its onset in, or is otherwise related to, the Veteran's active service. Please state upon what facts and medical principles and/or medical literature you base this opinion. In discussing this opinion, the examiner must specifically consider and discuss the Veteran's MOS as a mechanic. b) Also, if a bilateral hand disability is identified, is it at least as likely as not (a 50 percent probability or greater) that the bilateral hand disability is caused by any of the Veteran's service-connected disabilities, most notably service-connected right-hand scarring or left-hand scarring? Please state upon what facts and medical principles and/or medical literature you base this opinion. c) If the answer to (b) is negative, is it as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hand disability is aggravated by a service-connected condition, including painful scars, bilateral hands, type II diabetes, hypertension, or bilateral hand scarring? Aggravation is different from causation in that it did not cause the disability but rather caused an increase in severity that is not due to the natural progress of the disability. Please state upon what facts and medical principles and/or medical literature you base this opinion. d) If the answer to (c) is positive, and the examiner finds that a service-connected disability aggravates (causes an increase in severity that is not due to the natural progress of the disability) a bilateral hand disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the bilateral hand disability prior to aggravation. If the examiner is unable to establish a baseline for the bilateral hand disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. A full rationale must be provided for all medical opinions given, and any rationale must be consistent with the corresponding opinion. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Patton 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.