Citation Nr: 21008769 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-26 639 DATE: February 18, 2021 ORDER Service connection for allergic rhinitis, also claimed as hay fever, is denied. Service connection for sleep apnea, to include as secondary to allergic rhinitis, is denied. FINDINGS OF FACT 1. There is no probative evidence that the appellant’s preexisting allergic rhinitis, also claimed as hay fever, was aggravated by any period of active duty for training (ACDUTRA). 2. There is no probative evidence etiologically linking the appellant’s sleep apnea to any period of ACDUTRA, or to allergic rhinitis, also claimed as hay fever. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis, also claimed as hay fever, have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.655(b). 2. The criteria for service connection for sleep apnea, to include as secondary to allergic rhinitis, also claimed as hay fever, have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.310, 3.655(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on ACDUTRA from June 25, 1960, to December 16, 1960. It appears he also had subsequent periods of ACDUTRA from July 15 to July 30, 1961; August 12 to August 25, 1962; July 30 to August 16, 1963; July 30 to August 15, 1964; and from July 17 to August 1, 1965. In August 2015, the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) denied entitlement to service connection for allergic rhinitis, sinusitis, and sleep apnea. The appellant appealed the Board’s August 2015 decision with regard to his claimed of entitlement to service connection for allergic rhinitis and sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In a March 2017 Memorandum Decision, the Court vacated that part of the August 2015 Board decision which denied service connection for allergic rhinitis. The Court then remanded both issues for further action in accordance with its decision. Resultant to the Court’s March 2017 Memorandum Decision, the case was remanded by the Board in January 2018, September 2019, and most recently, in October 2020, to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Service Connection Service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303 (a). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Under VA law, “Veteran” status must be established as a condition of eligibility for service connection benefits with respect to any period of ACDUTRA or inactive duty for training (INACDUTRA) associated with enlistment in a Reserve component of one of the Armed Forces. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, an appellant must first establish Veteran status”) (citing Cropper v. Brown, 6 Vet. App. 450, 452 (1994)); see also 38 U.S.C. §§ 1110, 1131. The term “Veteran” is defined, in relevant part, as “a person who served in the active military, naval, or air service.” 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). The term “active duty” means full-time duty in the Armed Forces, other than ACDUTRA. 38 C.F.R. § 3.6 (a). The term “active duty for training” includes, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training purposes, and certain full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(3). Thus, in order to establish Veteran status with respect to service in the Reserves or National Guard, and therefore eligibility for service connection, the record must establish that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Unless and until Veteran status is established for any period of ACDUTRA or INACDUTRA, the presumptions of soundness and aggravation under 38 U.S.C. §§ 1111 and 1153, and the presumptions of service connection accorded certain diseases under the pertinent sections of the statute and regulations do not apply. See Bowers, 26 Vet. App. at 206 -07; Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to appellants whose claims are based only on a period of ACDUTRA); Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that the presumption of aggravation does not apply to periods of ACDUTRA); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established Veteran status (citing Biggins, 1 Vet. App. at 478)). Moreover, when a claim is based on aggravation of a preexisting disorder during an active duty for training period, the claimant must show "both that a worsening of [the] condition occurred during the period of active duty for training and that the worsening was caused by the active duty for training." Smith, 24 Vet. App. at 48 (citing 38 U.S.C.A. § 101(24)(B)). Thus, in contrast to claims based on a period of active duty, there must be affirmative evidence of actual causation of the worsening of the disorder by the period of active duty for training. See id. Causation is established when the evidence shows that the disorder worsened beyond its natural progression during the active duty for training period. See 38 U.S.C.A. § 1153. Because the presumption of aggravation does not apply in claims based on ACDUTRA when veteran status is not established, the burden is on the appellant to show causation. See Smith, 24 Vet. App. at 48. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has considered the appellant’s service connection claims and decided entitlement based on the evidence. Neither the appellant nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to service connection for allergic rhinitis, also claimed as hay fever. The appellant contends that his allergic rhinitis, also claimed as hay fever, was aggravated by an injury sustained during ACDUTRA, as discussed below. For the following reasons, the Board finds that there is no probative evidence to support the conclusion that the appellant’s allergic rhinitis, also claimed as hay fever, was aggravated during any period of ACDUTRA. In this regard, there is no evidence indicating that the appellant had any full time period of active duty in the active military, naval, or air service; no party asserts otherwise. The RO obtained the appellant’s service department records held by the National Personnel Records Center (NPRC), and his one service separation document of record, his DD-214, states that his service from June 25, 1960, to December 16, 1960, was six months of ACDUTRA. There are no other DD-214s of record and an April 2013 response from the NPRC indicates that the appellant had no active duty other than that for training purposes; the Board thus assumes that the remaining periods of service were also for ACDUTRA. The appellant has acknowledged on several occasions, in his September 2012 Substantive Appeal, during his October 2014 VA examination, and in his July 2015 statement, that his allergic rhinitis or hay fever existed prior to service. However, he claims, in his March 2011 statement and September 2012 Substantive Appeal, that during the summer months of his eight weeks of basic training at Fort Jackson, he was exposed to allergens, including pollen, dust, grass and plants, that severely aggravated his condition. The Board finds that the appellant is competent to testify as to whether or not he was exposed to pollen, dust, grass and plants, during a period of ACDUTRA, and that he experienced allergic symptoms therein; there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. A discussion of whether the appellant is competent to opine as to whether his in-service exposure to pollen, dust, grass and plants, aggravated his preexisting condition, is set forth below. As noted, the appellant acknowledges that his allergic rhinitis or hay fever existed prior to service. His April 1960 Report of Medical History states that he had a history of hay fever. More specifically, it states that he had one occurrence of hay fever at the beginning of the summer, but that it had never been disabling. In addition, the October 2014 VA examination report reflects that the appellant stated he was first treated for allergies prior to service, when he was 17 or 18 years old. Accordingly, the competent and credible, and thus probative, evidence of record establishes that the appellant had hay fever prior to ACDUTRA, and the appellant must show “both that a worsening of [the] condition occurred during the period of ACDUTRA and that the worsening was caused by the ACDUTRA.” Smith, 24 Vet. App. at 48 (citing 38 U.S.C. § 101 (24)(B)). The appellant’s service treatment records, beyond that of the April 1960 Report of Medical History discussed above, include a November 1960 Report of Medical History indicating that he had experienced or currently was experiencing hay fever, without illnesses found on contemporaneous physical examination, a December 1960 statement by the appellant that he experienced no change in his physical condition since his prior examination, his statements in July 1961, August 1962, July 1963, August 1964, and July 1965 that during his respective ACDUTRA there had been no change in his physical condition since his prior examination and he was not suffering any disability, defect, or illness not present at the beginning of duty, and his February 1965 Report of Medical History indicating prior private treatment with an allergist for mild seasonal hay fever within the last five years. The service treatment records are silent for contemporaneous treatment or diagnoses of any allergic symptoms, allergic rhinitis, or hay fever. The appellant’s VA treatment records demonstrate his use of medication for environmental allergies. Of record is an April 2011 letter from one of the appellant’s private treatment providers indicating that the appellant experienced intermittent episodes of hay fever and that he had been a patient since October 2010. The same private treatment provider, in January 2013, submitted a letter indicating, in pertinent part, that the appellant had a long-standing history of allergic rhinitis and was undergoing treatment. On VA examination in October 2014, the examiner provided recitation of the appellant’s statements as to his medical history as follows: “Veteran states he was first tested for allergies at Watson Clinic about 17-18 years old prior to service he was diagnosed as allergic to pollen, grass seed, animal fur, pollen to most trees and rag weed. He states he had the skin prick test. Veteran states he disclosed that he had hay fever/allergies on his entrance exam. Veteran states while stationed in Fort Jackson, he had a severe attack of his allergies, that he describes as raw nasal passages, sore throat, sneezing, watery eyes, clear runny nose. He states this attack lasted for a week, then another episode occurred shortly after that lasted 2-3 weeks. He states once he went to Fort Gordon then the hay fever/allergies improved because the weather was cold, he states he used over the counter (OTC) medications from that point. Veteran states he came back home and after 4-5 years his symptoms improved over time. Then he states since he has gotten older it is affecting him more. Veteran states his symptoms of his allergies were the same prior to service as during service. Veteran states he has taken allergy shots in the past in the mid 1960’s.” In concluding that the appellant’s hay fever was not aggravated beyond its natural progression during ACDUTRA, the examiner reasoned, in part, that “Per the Veteran’s Statement on examination today he had allergy symptoms prior to service that he states were the same after service.” The Court, in its March 2017 Memorandum Decision, found that the October 2014 VA examination was inadequate, stating that the VA examiner mentioned the appellant’s lay statements as to experiencing worsened hay fever symptoms during and for many years after reserve service, but it was unclear how this statement factored into her opinion. The Court noted that the Board should consider, if necessary, whether a medical expert is required to ascertain whether the appellant’s statements that he experienced many years of worsened hay fever symptoms after service constitutes permanent worsening. The Board, in its January 2018 remand, directed the RO to afford the appellant a VA examination and obtain an adequate etiological opinion on this issue. The RO initiated an Exam Scheduling Request on April 5, 2018. On May 23, 2018, it was noted that the appellant did not appear for his appointment. On December 22, 2018, an Exam Scheduling Request Contention Cancellation was issued indicating that the examination was cancelled; the reason given was “no appointment created.” The RO readjudicated the issue in a May 2019 Supplemental Statement of the Case (SSOC) and returned the claims file to the Board. In its September 2019 remand, the Board found that although the May 2019 SSOC indicated that the RO was informed that the appellant failed to report for his examination, the claims file did not contain any indication that the appellant was contacted and/or informed about his VA examination, nor was there any indication that the RO attempted to reschedule the VA examination. The Board thus found that the RO did not adequately fulfill its duty to assist the appellant with scheduling him for a VA examination. 38 C.F.R. § 3.159 (c)(4). The Board remanded the claim for compliance with the January 2018 Board remand directives, specifically directing the RO to associate with the claims file a copy of the letter notifying the appellant of the date, time, and location of the new VA examination. Resultant to the Board’s September 2019 remand, the RO sent the appellant a November 2019 letter requesting that he authorize VA to obtain any outstanding private treatment records. It appears that this letter represents the only correspondence of record addressed to the appellant dated after the September 2019 Board remand and before the July 2020 SSOC readjudicating the claim, and such is silent for any notification of any scheduled VA examination. Of record is a December 30, 2019, Examination Scheduling Request and a January 13, 2020, Examination Scheduling Request Contention Cancellation indicating that the examination was cancelled; the reason given was “no show.” In the July 2020SSOC, the RO noted that the appellant did not report for his VA examination and did not show good cause for such. In the September 2020 Informal Hearing Presentation (IHP), the appellant’s representative did not offer good cause for the appellant’s failure to appear for his scheduled VA examination and did not request that such be rescheduled. As notification to the appellant with the date, time, and location of the January 2020 VA examination was not associated with the claims file at the time of the Board’s October 2020 remand, the Board directed the RO to obtain and associate with the claims file a copy of the notification to the appellant with the date, time, and location of the January 2020 VA examination. Only if there is no record of such notification, did the Board direct the RO to schedule the appellant for a new VA examination. In October 2020, the RO associated with the claims file a copy of the notification to the appellant with the date, time, and location of the January 2020 VA examination, mailed to the appellant on January 2, 2020. As the RO associated with the claims file a copy of the notification to the appellant with the date, time, and location of the January 2020 VA examination, the RO did not schedule the appellant for a new VA examination. Under VA regulations, as to service connection claims, when a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655 (b). Since January 2018, in three Board remands, the Board and the RO have attempted to schedule the appellant for a VA examination in order to obtain the medical opinion contemplated by the Court in its March 2017 Memorandum Decision required to adjudicate his claim of entitlement to service connection for allergic rhinitis, also claimed as hay fever. The appellant’s representative, upon receipt of January 2018, September 2019, and October 2020Board remands in which the Board sought an adequate medical opinion and the May 2019, July 2020, and November 2020 SSOCs in which the RO discussed the efforts to do so, noting the appellant’s failure to appear to his scheduled VA examination without request for rescheduling, submitted July 2019, September 2020, and December 2020 IHPs silent for any argument as to good cause for failure to appear to the appellant’s scheduled VA examination or request for rescheduling. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). There are no adequate etiological opinions as to whether the appellant’s preexisting allergic rhinitis, also claimed as hay fever, was aggravated by any period of ACDUTRA, as the Court, in its March 2017 Memorandum Decision, found the October 2014 VA opinion inadequate and the appellant did not appear for any of the subsequent scheduled VA examinations. The Board has considered the appellant’s lay statements describing his symptoms of allergic rhinitis before, during and after his period(s) of ACDUTRA, as well as his in-service exposure to pollen, dust, grass and plants. The appellant is competent to report and describe his in-service exposures and symptoms. He did not specifically describe the type and severity of his allergy symptoms prior to service during the October 2014 VA examination. He stated only that he had been diagnosed with hay fever when he was 17 or 18 years old. He went on to describe in detail two allergy attacks that he experienced at Fort Jackson. Then he stated that his allergies improved when he went to Fort Gordon because the weather was cold. Next, he stated that he returned home and after four to five years his symptoms improved over time. Finally, he said that the symptoms of his allergies were the same prior to service as during service. The Board construes this history, as reported by the appellant, to suggest that the allergy attacks he experienced during service were the same as any attacks that he had experienced before service. With respect to his statement that he returned home and after four to five years his symptoms improved over time, this statement suggests that his allergy symptoms, which were the same before and during service, were still the same when he separated from service and then gradually improved over the next four to five years, as opposed to worsened in the years after service. The appellant’s service treatment records are consistent with his statement that the symptoms of his allergies were the same prior to service as during service. As noted above, his April 1960 Report of Medical History states that he had a history of hay fever, described as one occurrence of hay fever at the beginning of the summer which had never been disabling. In December 1960, he reported that he experienced no change in his physical condition since his prior examination. In statements in July 1961, August 1962, July 1963, August 1964, and July 1965, he stated that during his respective ACDUTRA there had been no change in his physical condition since his prior examination and he was not suffering any disability, defect, or illness not present at the beginning of duty. Further, in his February 1965 Report of Medical History, while noting prior private treatment with an allergist for hay fever, he described his condition as “mild.” The service treatment records themselves are silent for contemporaneous treatment or diagnoses of any allergic symptoms, allergic rhinitis, or hay fever. Thus, the Board finds that the appellant’s lay statements do not support a finding that his allergic rhinitis underwent a worsening during service. Regardless, to the extent that the appellant’s description of his symptoms before, during and after ACDUTRA is unclear or suggests a worsening of his allergic rhinitis during ACDUTRA, whether any such worsening was beyond the natural progress of the condition and/or was caused by exposure to certain allergens during his period of ACDUTRA, is a medical determination requiring medical expertise. Therefore, the appellant’s statements are not competent in this regard. The appellant is not competent to provide evidence as to complex medical questions such as the question before the Board, whether his underlying condition of allergic rhinitis underwent a permanent worsening beyond its natural progress during ACDUTRA and if so whether that worsening was caused by his period of ACDUTRA, as this is a medical determination requiring medical expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The appellant’s lay assertions are thus not competent or sufficient and are not probative evidence in this regard. In sum, there is no probative evidence showing that the appellant’s underlying condition of allergic rhinitis, also claimed as hay fever, was aggravated by any period of ACDUTRA. The Board notes that temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board has considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for allergic rhinitis, also claimed as hay fever. As such, that doctrine is not applicable in the instant appeal and the claim must be denied. 2. Entitlement to service connection for sleep apnea, to include as secondary to allergic rhinitis, is denied. With regard to the claim of entitlement to service connection for sleep apnea, there is no probative evidence showing that the appellant’s sleep apnea was incurred or aggravated during a period of ACDUTRA. The appellant’s service treatment records are silent for any complaint, treatment, or diagnosis of sleep apnea; no party asserts otherwise. Private treatment records dated in June 2003 indicate that he underwent polysomnography and was diagnosed with obstructive sleep apnea. There is not merely an absence of evidence as to a direct relationship between the appellant’s sleep apnea and any period of ACDUTRA, but rather the appellant has consistently stated, in his September 2012 Substantive Appeal, by his January 2013 submission of an internet article discussing that children can be affected by sleep apnea, especially when the anatomical structures are enlarged by allergies, and in his February 2013 statement that his sleep apnea is possibly or could be related to hay fever, that his sleep apnea is only secondary to his allergic rhinitis, also claimed as hay fever. By the Board decision herein, service connection for allergic rhinitis, also claimed as hay fever, is denied. The appellant has offered no lay statements as to a direct relationship between his sleep apnea and any period of ACDUTRA. It was only in the July 2015 IHP submitted by the appellant’s representative that a suggestion of direct service connection for sleep apnea was, at most, indirectly raised. Accordingly, the preponderance of the evidence weighs against a finding of direct service connection for this claim; the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. 49, 53, Shedden, 381 F.3d at 1166-67. While there is a current diagnosis of obstructive sleep apnea, there is no lay or clinical evidence of sleep apnea or symptoms thereof or an injury to cause such during a period of ACDUTRA; there is thus no basis for further inquiry as to whether there exists an etiological relationship; there is no inquiry to pose to any VA examiner. Further, secondary service connection cannot be established as a matter of law since the appellant’s allergic rhinitis, also claimed as hay fever, is not service connected. Thus, the claim of entitlement to service connection for sleep apnea, to include as secondary to allergic rhinitis, also claimed as hay fever, is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.