Citation Nr: 21010407 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-21 121A DATE: February 24, 2021 ORDER Service connection for rhinitis, claimed as secondary to a service-connected asthma disability, is denied. Service connection for migraine headaches, claimed as secondary to a service-connected asthma disability, is denied. FINDINGS OF FACT 1. The Veteran’s rhinitis is not secondary to her service-connected asthma and is not otherwise related to an in-service injury or disease. 2. The Veteran’s migraine headaches are not secondary to her service-connected asthma disability, is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for rhinitis, claimed as secondary to a service-connected asthma disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for migraine headaches, claimed as secondary to a service-connected asthma disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to February 1994. She served with the Naval Reserve from 1994 to March 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. To establish service connection, the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis if the evidence demonstrates the claimed disability is proximately due to or the result of a service-connected disease or injury; or, the claimed disability increased in severity beyond its natural progression proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a), (b). There is a clear distinction between individuals who serve on active duty and those who only serve on ACDUTRA (active duty for training). An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and be entitled to disability compensation benefits. In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the Court stated that the placement of the burden of proof on the Veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing INACDUTRA (inactive duty for training or IDT). Id.; see also 38 U.S.C.A. §§ 106, 1110, 1131; 38 C.F.R. § 3.303(a). Here, the Veteran is seeking service connection for allergic rhinitis and migraine headaches. However, neither appears to be the result of a specific injury during the Veteran’s reserve service. Thus, while the Veteran might have experienced headaches and allergic rhinitis during her time in the reserve, there has not been a showing that either directly resulted from an injury during IDT. 1. Service connection for rhinitis, claimed as secondary to a service-connected asthma disability The Veteran is seeking service connection for rhinitis which she believes is the result of her active military service. More specifically, she contends that exposure to fumes during service led ultimately to her developing allergic rhinitis. Alternatively, she asserts that her rhinitis was caused or aggravated by her service-connected asthma. Service medical records document ongoing complaints of shortness of breath and sinus problems. In an October 2009 statement, the Veteran stated that while in service, she worked as a Hull Technician, but was not provided personal protective equipment to protect against the hazardous conditions. She believes that this contributed to the development of her disabilities. A November 2009 medical treatment letter indicates that the Veteran has been receiving treatment for rhinitis since 1999. The Veteran submitted several buddy statements indicating that her working environment contributed to her condition. In July 2016 correspondence, the Veteran reported experiencing allergic rhinitis since October 1998. The evidence does not show that allergic rhinitis occurred as a result of inactive duty for training or active duty for training. In a November 2009 statement, a VA doctor wrote that the Veteran had been receiving treatment at the Atlanta VAMC for migraine headaches, allergic rhinitis, chronic sinusitis, and asthma since 19999. The Board concludes that, while the Veteran has a current rhinitis disability, the preponderance of the evidence is against finding that her disability is proximately due to or the result of or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). In February 2018, Dr. Bush wrote a statement concluding that it was more likely than not that the Veteran’s medical history and allergic rhinitis were the result of her active military service. He reasoned that the Veteran’s medical maladies were proximately caused by her exposure to toxic substances while working as a welder. He added that in the alternative the allergic rhinitis was secondary to her asthma, because it was well-accepted that toxic respiratory substances may cause pathology to some extent along the entirety of the pulmonary anatomy, from nares/sinuses to the terminal alveoli of the lungs. Dr. Bush instead noted that his rationale comes from his “education-training along with 30 years’ experience in the practice of medicine.” However, his statement failed to cite any medical literature or specific findings regarding the onset of the Veteran’s allergic rhinitis. As such, it is found to be of reduced probative value. Of note, the Board placed the Veteran on notice of the inadequacy of this opinion in its remands of the Veteran’s case, but she has not provided any additional opinion with improved rationale. In an April 2019 VA examination, the Veteran reported that her allergic rhinitis had started in 1992 when she broke out in hives, and had frequent sore throats, hoarseness, itchy eyes, and watery/puffy eyes. The Veteran reported symptoms of allergic rhinitis has been ongoing since 1992 occurring monthly. The symptoms were made worse with working in mail freight room in post office and season changes. In a May 2019 VA medical examination report, a VA examiner opined that the Veteran’s diagnosed allergic rhinitis disability was not related to her service-connected asthma disability to include as a result of her collapse in October 1998 during fitness training. The rationale provided was that “although medical literature from Healthline, reports some external factors can trigger or worsen this condition… there are many factors that may trigger or worsen asthma there is no evidence found that suggest that frequent contact with possible allergens and irritants may increase your risk for developing asthma.” In explaining the reasoning for this opinion, the examiner did not then explain why the Veteran’s asthma had not increased her risk of developing the allergic rhinitis. As such, the claim was remanded in December 2019 for additional development regarding possible aggravation. The Board requested that a VA examiner determine the nature and etiology of the Veteran’s diagnosed migraine disability. The examiner was asked to review the entire claims file, to include the service medical records; the post-service treatment records; the medical opinions of record, to include the February 2018 private medical opinion and the May 2019 VA medical examination report; and the Veteran’s lay statements. The examiner was asked to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran’s migraine disability either began during or was otherwise caused by her military service, to include as a result of the inhalation of welding fumes during service and/or a physical collapse during fitness training in October 1998? Why or why not? The examiner should discuss the relevance of the February 2018 private medical opinion, in which an examiner indicated a relationship between welding fumes and migraines. (b.) Is it at least as likely as not (50 percent or greater) that the Veteran’s migraine headache disability was caused by her service-connected asthma? Why or why not? In writing this opinion, the examiner should discuss the relevance of the May 2019 VA medical examination report in which a VA examiner indicated that asthma could increase the risk of allergic rhinitis. (c.) Is it at least as likely as not (50 percent or greater) that the Veteran’s migraine headaches were aggravated (made worse) by her service-connected asthma? Why or why not? In writing this opinion, the examiner was requested to discuss the relevance, if any, of the May 2019 VA medical examination report in which a VA examiner indicated that asthma could increase the risk of allergic rhinitis. In April 2020, a VA examiner provided a series of opinions. She noted that the provided medical records revealed on enlistment claimant had no complaints of sinus/rhinitis condition, in January 1991, a medical examination revealed claimant had complaints of sore throat, cough and phlegm, and was found to have nasal congestion. She was diagnosed with a viral upper respiratory infection in February 2000. Medical examination revealed claimant had complaints of occasional sinus infections. In January 2005, a medical examination revealed the Veteran had a diagnosis of sinusitis with allergies to dust and grass. In May 2008 a Medical Board examination revealed a diagnosis of sinusitis, bronchitis and chronic asthma since 1998. Records also revealed claimant has allergies to pollen. The examiner noted that there were no complaints of or diagnosis of allergic rhinitis while the Veteran was in the military in the 1990s. In 2005 she complained of occasional sinus infections with allergies to dust and grass. This is post military service and a diagnosis of allergic rhinitis as mentioned was not found while she was in the military. There is no evidence that welding fumes caused this Veteran to have rhinitis/sinusitis. The examiner concluded that it was less likely than not that the Veteran’s allergic rhinitis began in or was otherwise caused by the Veteran’s active military service. The examiner opined that it was less likely than not that the Veteran’s allergic rhinitis had been aggravated by her service-connected asthma. The examiner explained that asthma and allergic rhinitis share similar pathophysiology and may coexist, but one does not necessarily aggravate the other. The examiner noted that the May 2008 medical record indicates that she has allergens to pollen which is more likely the cause of her sinusitis. The Veteran believes her rhinitis is caused or aggravated by a service-connected disability. The Veteran in this case is not competent (meaning medically qualified through training or experience) to provide an opinion on a medically complex issue. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Here, there are multiple medical opinions of record which have all been provided by competent medical professionals. As such, the Board must weigh the evidence and determine which opinion or opinions is found to be the most probative. Here, as discussed, the most recent VA opinions directly addressed the questions posed by the Board in its remand. The opinions were supported by evidence in the record, and therefore constitute the most comprehensive evidence. Accordingly, these opinions are afforded the greatest weight. When this is done, the weight of the evidence is against the Veteran’s claim, and it is denied. 2. Service connection for migraine headaches, claimed as secondary to a service-connected asthma disability The Veteran is seeking service connection for her migraine headaches disability which she believes is the result of either active service or her service-connected asthma. The Veteran’s service treatment records indicate in-service treatment for a reported headache in October 1990. In a November 2009 medical treatment letter, the Veteran reported that she had received treatment for migraines since 1999. The Veteran also submitted multiple buddy statements regarding her having experienced migraines following service. At her Board hearing in 2015, the Veteran was asked when she started experiencing migraine headaches, to which she responded that the only date she could recall was in about 2008. The Board concludes that, while the Veteran has a current disability that causes pain on both sides of her head and worsens with physical activity, the preponderance of the evidence is against finding that the Veteran’s migraine headaches are proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In February 2018, Dr. Bush wrote a statement concluding that it was more likely than not that the Veteran’s medical history and migraine headaches were the result of her active military service. However, he did not provide a clear rationale to support his conclusion for VA purposes versus other possible etiologies. Dr. Bush instead noted that his rationale comes from his “education-training along with 30 years’ experience in the practice of medicine.” His statements fail to cite any medical literature or specific findings regarding the onset of the Veteran’s migraine headaches. As such, it is found to be of little probative value. In an April 2020 VA examination, the Veteran reported that the claimed disability began in 1990 during active service. The Veteran attributed the condition to working outside in the hot head during landscaping and inhaling gas fumes from the lawn mower. In the May 2020 VA medical opinion, the examiner opined that that it was less likely as not that your migraines were due to your military service to include any inhalation of welding fumes or the collapse during training in October 1998. The examiner also noted that the Veteran was treated in March 1990 with headache and dizziness. After treatment the condition resolved with no residuals. There was no additional treatment until May 2008. The examiner determined there is not sufficient evidence to provide a nexus between the claimed disability and active service. The examiner also opined the migraines are not due to or aggravated by the service-connected asthma disability. The rationale provided was that while these conditions have the same pathophysiology there is no medical evidence to support a link between migraines and asthma nor does the medical evidence show that the asthma disability has aggravated the claimed disability. The examiner explained the Veteran’s claimed condition/current condition of migraines is less likely than not began during or was otherwise caused by her military service, to include as a result of the inhalation of welding fumes during service and/or a physical collapse during fitness training in October 1998. The Veteran has an episode of a headache and dizziness in March of 1990. There is no other complaint of, treatment for, or diagnosis of headaches until May 2008, in which the progress note reveals that symptoms of migraines started in 1998, which was years after she left active duty service. Continuation of care has not been established The Veteran believes her migraine headache disability is the result of active service or the result of a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As with the opinions for the allergic rhinitis portion of this decision, the recent VA opinions on the Veteran’s migraine headache condition were the best supported by the evidence of record and therefore are afforded the most probative weight. As such, the weight of the evidence is against service connection and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.