Citation Nr: 21009601 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 12-05 107A DATE: February 22, 2021 ORDER Entitlement to service connection for allergic rhinitis is granted. REMANDED Entitlement to service connection for a bilateral big toe disability is remanded. FINDING OF FACT There is probative evidence of record attributing the Veteran’s allergic rhinitis to his active military service. CONCLUSION OF LAW The criteria for service connection for allergic rhinitis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to February 1983. The record also reflects that the Veteran served on the National Guard from March 1983 to April 1984. The record also reflects that the Veteran served in the National Guard in 2008 and 2009 and the Veteran reports having served in the National Guard from 1983 to 1987. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Pittsburgh, Pennsylvania, and Jackson, Mississippi, respectively. The Board previously remanded this matter in April 2017. 1. Entitlement to service connection for allergic rhinitis is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent medical or lay evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Board notes that the Veteran was diagnosed with allergic rhinitis. See May 2017 VA C&P Examination. While serving during his active duty, the Veteran complained of sinus congestion and was diagnosed with an upper respiratory infection. See May 1980 Service Treatment Record. Accordingly, the first two requirements to establish service connection are met. See Shedden, 381 F.3d at 1167. The Veteran was examined for his condition in May 2017. During the examination, the Veteran reported that only after joining the military he experienced chronic stuffy nose, clear/white nasal discharge, and postnasal drip. He did not report to sick call for these symptoms because they were the kind “you just deal with” as a soldier. The examiner diagnosed the Veteran as having allergic rhinitis and opined that it was at least as likely as not that the Veteran’s condition was due to his active service. The examiner reasoned that it to be reasonable that the Veteran did not report to sick bay for his sinus symptoms as “a responsible soldier would just keep doing his job.” Additionally, the examiner concluded that the Veteran’s history, based on review of his medical records, of chronic nasal and postnasal drip symptoms since active duty is consistent with his diagnosis of allergies/rhinitis not in his primary care records during a 2008 VA Medical Center visit. See May 2017 VA C&P Examination. There are no additional competent medical opinions contradicting that of the May 2017 examiner. The Board finds the May 2017 opinion to be especially probative. This finding is underpinned by sufficient rationale, citing to the Veteran’s competent statements regarding the onset and continuity of his symptomatology and his medical history based on his service medical records and post-service medical records, including a complete review of the claims file. The probative evidence shows that the Veteran’s allergic rhinitis is the result of his active duty service. Thus, service connection for allergic rhinitis is warranted. See 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral big toe disability is remanded. The Board sincerely regrets the additional delay; however, further evidentiary development is required before the Veteran’s claim for service connection for a bilateral toe disability can be adjudicated on the merits. As noted above, the Board acknowledges that the Veteran has served in the National Guard. Even though there are service treatment records and service personnel records associated with the claims file revealing the Veteran’s education, performance, assignments, points, and awards, the precise dates of all periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran’s periods of ACDUTRA and INACDUTRA. After the April 2017 remand was issued, the Veteran was examined for his bilateral toe conditions. The May 2017 examiner found that plantar fasciitis, for which the Veteran was subsequently awarded service connection, could result in hallux limitus, hallux valgus, or those associated arthritic changes, such as those exhibited by the Veteran. See May 2017 VA C&P Examination; December 2017 Rating Decision. A September 2017 addendum opinion noted that the Veteran’s foot type that was a risk factor for developing plantar fasciitis would be the same risk factor for developing his current bilateral toe disabilities. See September 2017 VA Addendum Opinion (labeled C&P Examination). When the Veteran was evaluated again in December 2017, the examiner noted the symptoms of hallux valgus and the difference between that and plantar fasciitis. See December 2017 VA Medical Opinion (labeled C&P Examination). The Board acknowledges that the Veteran was awarded service connection for plantar fasciitis in a December 2017 rating decision. Therefore, there is a question as to whether the Veteran’s bilateral toe disabilities are at least as likely as not etiologically related to his plantar fasciitis. VA obtained an opinion in October 2020 indicating that the Veteran’s conditions were less likely than not caused by his service-connected plantar fasciitis. Nevertheless, this opinion is inadequate, as it does not address the question as to whether the Veteran’s conditions were aggravated by his service-connected condition. See El-Amin v. Shinseki, 26 Vet. App. 136 (2012) (medical opinions addressing secondary service connection must discuss both causation and aggravation). Consequently, the Board finds that an addendum opinion must be obtained on remand. The matters are REMANDED for the following action: 1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard a report detailing the Veteran’s award of retirement points will NOT represent compliance with this instruction. Rather, each and every date of ACDUTRA and INACDUTRA must be identified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. All medical treatment records associated with the Veteran’s National Guard service should also be obtained. 2. After completing the foregoing development, forward the claims file to an appropriate clinician who has not previously provided an opinion in this matter for an addendum opinion ascertaining the nature and etiology of any and all bilateral toe condition(s) attributable to the Veteran. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. (a) The clinician should identify any and all bilateral toe condition(s) attributable to the Veteran throughout the appellate period. (b) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA. (c) For each condition so identified, the clinician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was either (i) caused or (ii) aggravated by his service-connected plantar fasciitis. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to aggravation. In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including, but not limited to: (i) The Veteran’s service treatment records; (ii) The Veteran’s post-service VA medical records; (iii) The Veteran’s post-service private medical records; (iv) Various articles submitted by the Veteran indicating a relationship between cold injury and foot conditions; and (v) The various competent lay statements by the Veteran and his previous representative regarding the Veteran’s first-hand experiences in service and the onset and continuity of his symptomatology. If the clinician determines that the Veteran’s bilateral toe condition(s) is/are less likely than not the result of his active duty service, ACDUTRA, and/or INACDUTRA, or that the Veteran’s bilateral toe condition(s) is/are less likely than not caused and/or aggravated by his service-connected plantar fasciitis, the clinician should discuss what other factor(s) caused the disorder(s). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.