Citation Nr: 21012797 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-24 518 DATE: March 5, 2021 ORDER Entitlement to service connection for rhinitis, claimed as sinusitis, is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT Allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond natural progression by the Veteran’s period of service. CONCLUSION OF LAW The criteria for service connection for rhinitis, claimed as sinusitis have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1986 to August 1986, February 1991 to May 1991, October 1998 to March 1999, April 2002 to May 2002, and August 2005 to July 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2011 and December 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. All requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The matter was remanded in April 2018, and the record shows compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for rhinitis, claimed as sinusitis, is denied. The Veteran seeks entitlement to rhinitis, claimed as sinusitis, which he asserts is etiologically related to in-service environmental exposures. See February 2018 hearing testimony. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. If a condition is not noted upon entrance into service, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). First, allergic rhinitis has been diagnosed during the appeal period. See November 2011 VA examination report. Thus, the first element of service connection is met. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Second, the Veteran was treated for allergic rhinitis in service. An April 2007 service treatment record (STR) documented the Veteran had complaints of severe allergies with a stuffy nose, watery eyes, and sneezing for a month. He reported being seen in Missouri a month prior and being given allergy medication and his symptoms improved, however they flared a week prior upon arrival to his duty station in Germany. The assessment was allergic rhinitis. Thus, there is an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). . In this case, the more probative evidence of record establishes that allergic rhinitis clearly and unmistakably preexisted service, and clearly and unmistakably was not aggravated beyond natural progression by the Veteran’s period of active service. The preponderance of the lay and medical evidence shows that allergic rhinitis clearly and unmistakably preexisted service. The Veteran’s STRs appear incomplete, and do not show that allergic rhinitis was noted upon entrance to the period of service from August 2005 to July 2007. Thus, he is presumed sound. At the February 2018 hearing, the Veteran described a history of sinusitis that existed prior to August 2005 but worsened during his period of active duty due to environmental exposures. An October 2019 VA examiner also documented the Veteran’s testimony of allergic rhinitis that preexisted service, and the examiner opined that allergic rhinitis clearly and unmistakably preexisted service. Overall, the lay and medical evidence establishes allergic rhinitis clearly and unmistakably preexisted service. The more probative evidence of record demonstrates that the preexisting allergic rhinitis clearly and unmistakably was not aggravated beyond natural progression during the Veteran’s period of service. The Veteran asserts environmental exposures in service worsened his symptoms in service. Specifically, he described exposure to various gases and other fumes, although he did report wearing a gas mask. He reported his eyes would water in service, and that he currently had sinus problems during the spring and fall. Although the Veteran is competent to report his symptoms, as a lay person he is not competent to provide a medical opinion as to whether a disease has increased beyond natural progression due to an in-service exposure. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that non-expert witnesses are competent to report that which they have observed with their own senses). Such a medical opinion is beyond lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (noting the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence). As the Veteran is not competent to provide the nexus opinion proffered, the opinion carries no probative weight. VA obtained a medical examination and opinion in October 2019. The examiner opined allergic rhinitis clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of that opinion, the examiner explained the Veteran reported a history of allergies on entrance into service, and the STRs did not indicate he had a severe allergic response in service. Although the evidence indicated in-service exposure to environmental fumes and gases that caused the Veteran’s eyes to water; there was no incidence of nausea, vomiting, throat irritation, or eye irritation found in the clinical record referring to ingestion of gas fumes. The examiner did note the Veteran experienced several weeks of unrelieved allergy symptoms in April 2007 after deployment to Germany when he was without his regular allergy medicine. The examiner explained the Veteran’s allergies were generally controlled with the use of his regular allergy medication. The in-service exposure to fumes did not exacerbate the allergy symptom into an emergency response and his symptoms were abated with his usual medication regimen. The 2019 addendum opinion is adequate as the examiner addressed the lay and medical evidence and provided a fully articulated rationale to support the conclusions they made. The examiner’s rationale also addressed all pertinent evidence identified in the 2018 Remand. Overall, the 2019 examiner’s opinion is competent and carries great probative weight. In sum, the preponderance of the evidence shows that allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by the Veteran’s period of service. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. This issue is remanded to obtain an adequate medical opinion that complies with the prior remand directives. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The 2018 Remand directed the RO to obtain a medical opinion on the etiology of the claimed hypertension that specifically addressed 2006 medical records indicating the Veteran’s hypertension medication was increased during a period of active service and the Veteran’s lay testimony that his hypertension was aggravated in service. VA obtained an addendum opinion in October 2019. The October 2019 VA examiner opined that hypertension clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service illness, event, or injury during service. The examiner explained the Veteran’s hypertension, although it had fluctuated, had been controlled and responded well to antihypertensive medications. The examiner cited to treatment records from April 2017 through March 2019 in the rationale section, but did not address the 2006 treatment records or lay testimony of aggravation in service. Thus, remand is required for an addendum. Last, on remand efforts must be made to identify and obtain outstanding and relevant VA or private treatment records. 38 C.F.R. § 3.159(c)(1); Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an addendum opinion regarding whether the preexisting hypertension was clearly and unmistakably not aggravated during the Veteran’s period of service from 2005 to 2007. (b.) The examiner must specifically address the following: February 2006 VA treatment records, during the Veteran’s period of active service, showing his blood pressure medication was increased; and the Veteran’s testimony that his hypertension was aggravated during his final period of service as evidenced by the increase in medication in 2006. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.