Citation Nr: 21007744 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-03 287 DATE: February 10, 2021 ORDER Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for headaches also is granted. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for an unspecified respiratory condition, to include sinusitis, dyspnea, and intermittent asthma, due to burn pit exposure is = remanded. Entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise concerning whether Veteran’s allergic rhinitis was caused or aggravated by his military service. 2. His headaches are caused by his allergic rhinitis. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for his allergic rhinitis and consequent headaches. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 2002 to October 2009. He testified in support of these claims during a videoconference hearing in February 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Service Connection 1. Entitlement to service connection for allergic rhinitis Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).   Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).   There is no disputing the Veteran has allergic rhinitis (i.e., seasonal allergies). What therefore must be resolved, instead, is whether this condition is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The Board finds that the evidence is in relative equipoise (meaning about evenly balanced for versus against the claim) concerning whether the Veteran’s allergic rhinitis is related to or the result of his service. In this circumstance, this reasonable doubt is resolved in his favor and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  Notably, in support of his claim, the Veteran submitted a private medical opinion from Dr. N.N.S. in January 2017. Dr. N.N.S. opined that the Veteran’s allergic rhinitis more likely than not developed during his time in the military. This commenting doctor pointed out the Veteran had no history of allergic rhinitis or sinus symptoms prior to joining the military in 2002. Environmental exposures, such as dry heat, fires, smoke, chemical vapors, scents, exhaust, and other airborne irritants, are well known to aggravate symptoms of allergies and can lead to chronic sinus inflammation. In contrast, a July 2014 VA examiner concluded the Veteran’s allergic rhinitis is less likely than not due to his military service because his noted allergens are animals and pollens, not burn pits. However, this July 2014 examiner also conceded the Veteran clearly has environmental allergies that change when he changes locations. The Board finds Dr. N.N.S.’s medical opinion and the VA examiner’s opinion to be of equal, certainly similar, probative value. Both opinions were rendered after reviewing all available records relevant to this claim and contain rationales for the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither opinion necessarily is more persuasive. Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). In this case, there is positive and negative evidence on the issue of whether the Veteran’s current allergic rhinitis is etiologically related to his service. As such, resolving all reasonable doubt in his favor concerning this posited correlation, service connection for allergic rhinitis is warranted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for headaches The Veteran and his representative testified during the hearing that his allergic rhinitis causes or aggravates his headaches, so this claim is predicated on the notion of secondary service connection. Establishing service connection on a secondary basis requires evidence showing a service-connected disability caused or is aggravating the condition being additionally claimed. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). The January 2017 private opinion from Dr. N.N.S. confirms the Veteran’s headaches are secondary to his allergic rhinitis. Dr. N.N.S. explained that the Veteran’s severe allergies more likely than not trigger his chronic headaches and migraines. Consequently, there is the required correlation between the allergic rhinitis that was determined in this decision to be a service-connected disability and the headaches to, in turn, allow for the additional granting of service connection for the headaches since associated with (i.e., secondary to) the allergic rhinitis. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle condition, to include posterior tibial tendonitis, is remanded. The Veteran, at his request, underwent a VA examination in support of his claim for service connection for a left ankle condition in December 2018. Notably, however, the VA examiner did not opine on the etiology of the Veteran’s left ankle condition, to include posterior tibial tendonitis. As such, the December 2018 VA examination report is inadequate for adjudication purposes and remand is warranted to obtain a supplemental medical opinion addressing the etiology of this claimed disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for an unspecified respiratory condition, to include sinusitis, dyspnea, and intermittent asthma, claimed to be due to burn pit exposure or other environmental exposures, is remanded. In July 2014, Veteran was afforded a VA examination to determine the etiology of his claimed respiratory condition. That VA examiner determined the Veteran’s respiratory condition was less likely than not incurred in or caused by his service, including exposure to burn pits, because at the time of that examination a pulmonary condition had not been diagnosed. So, for all intents and purposes, there was no then current pulmonary condition to, in turn, relate or attribute to the Veteran’s service. In the years since, however, service connection is being granted for allergic rhinitis and associated headaches, and records in the file show additional diagnoses of sinusitis and intermittent asthma – including during the pendency of this appeal. Therefore, a supplemental medical opinion is needed regarding the etiology of the Veteran’s sinusitis and intermittent asthma, including in terms of whether due to exposure to burn pits or other toxins during his service. 3. Entitlement to service connection for a low back condition is remanded. The Veteran has not been afforded a VA examination in response to this claim for service connection for a low back condition. VA’s duty to assist includes providing a medical examination or obtaining an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran reports experiencing chronic pain in his lower back and resultantly receiving physical therapy, acupuncture, seeing a chiropractor. While the evidence of record is unclear as to whether there also is consequent functional impairment of his earning capacity, even absent an underlying diagnosis explaining his pain, the Board finds there is sufficient evidence nonetheless to afford him a VA examination concerning this claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).   Accordingly, these remaining claims are REMANDED for the following action: 1. Contact the Veteran and inquire whether there are any additional records concerning his remaining claims needing to be obtained. If there are, obtain these additional records following proper procedure and protocol (38 C.F.R. § 3.159(c)) and appropriately notify him and his representative if unable to obtain records that he identifies (38 C.F.R. § 3.159(e)). 2. After receiving all additional records, obtain a supplemental (addendum) medical opinion from a qualified clinician concerning the nature and etiology of the Veteran’s left ankle condition, including especially posterior tibial tendonitis, both in terms of whether a) directly related to his service or b) secondarily related, meaning caused OR aggravated by a service-connected disability, including by his service-connected bilateral pes planus with bilateral plantar fasciitis and right foot sprain of the calcaneal cuboid joint and right tibia posterior tendonitis with lateral collateral ligament sprain. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to this claim If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability/disabilities. If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner’s discretion. 3. Also obtain supplemental medical comment (an addendum opinion) concerning the origins of the Veteran’s unspecified respiratory condition – including his sinusitis and intermittent asthma and any associated symptoms (e.g., dyspnea, etc.), in terms of whether a) directly due to service from exposure to burn pits or other environmental exposures to toxins or b) caused OR aggravated by a service-connected disability, so including the now service-connected allergic rhinitis and headaches. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to this claim. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability/disabilities. If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner’s discretion. 4. As well, provide the Veteran a VA examination by a qualified clinician for a medical opinion concerning the nature and etiology of his low back condition. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to this claim. Based on a review of the Veteran’s medical records, his lay statements regarding the development and treatment of his low back condition, and consideration of all other relevant evidence in the claims file, including a complete copy of this remand, the examiner is asked to first address whether Veteran: a) has an underlying diagnosis to account for or explain his complaints of chronic low back pain. But, even if he does not, the examiner must consider whether the chronic pain is causing functional impairment of earning capacity that, in turn, would permit VA adjudicators to conclude the Veteran has a ratable low back disability, even absent an underlying diagnosis. See Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018). The examiner is then asked to comment on: b) the source or cause of the Veteran’s low back disability, including especially in terms of whether (i) directly related or attributable to his military service, particularly from working in munitions (causing “wear and tear”) since that involved carrying heavy loads as much as 250 pounds or (ii) caused OR aggravated by a service-connected disability, including by his bilateral pes planus and bilateral plantar fasciitis. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the low back condition by the Veteran’s service-connected disability/disabilities. The mere absence of evidence of treatment for a low back condition in the Veteran’s STRs cannot, at least alone, be sufficient rationale for providing an unfavorable opinion disassociating this claimed condition from his service. It is acceptable, however, to consider this as one of other factors, provided there also is explanation of why it is reasonable to have expectation in the STRs of this claimed disability. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide reason for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.