Citation Nr: 21013256 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-02 610 DATE: March 9, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for allergic rhinitis is denied. FINDINGS OF FACT 1. The Veteran’s lumbar sprain was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established but is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that allergic rhinitis began during active service from April 1991 to August 1991, or is otherwise related to an in-service injury, event, or disease; allergic rhinitis pre-existed the Veteran’s entrance into service in October 1997, but all symptoms arose from acute episodes and service did not aggravate the allergic rhinitis beyond its natural progression. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar strain, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for allergic rhinitis have not been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty training (ADT) from April 1991 to August 1991 as a member of the Tennessee National Guard and on active duty from October 1997 to September 2000 in the United States Army. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 and August 2020, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and his wife appear to have raised the issues of reopening a claim for service connection for a deviated septum, and new claims for service connection for sleep apnea, and service connection for a bilateral feet disorder in their statements dated January 2021 (the Veteran) and November 2020 (the Veteran’s wife). The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). This presumption of soundness can be overcome with clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. Id. If a defect, infirmity, or disorder is noted upon entrance, such conditions are considered pre-existing. When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). . Lumbar Spine Disorder The Veteran has a current lumbar spine disability. For example, at his October 2019 VA examination he was diagnosed with lumbosacral strain. Thus, the remaining question is whether the current lumbosacral strain disability is related to service. Service treatment records show the Veteran sought treatment once while on ADT. In June 1991, he was diagnosed with a minor right upper back strain. Thereafter, for the remainder of his ADT, there are no complaints, diagnosis, or treatment related to a back disability. In a March 1997 periodic examination while in the National Guard, the spine was normal, and the Veteran reported he did not have recurrent back pain. He reported hay fever. As the Veteran reported other ailments, and back problems are the type that a reasonable person would report, if the Veteran was experiencing problems with the back during ADT or the National Guard the Board would expect that he would have reported these problems to medical professionals. If back pain was present before or at this time, the Board would expect the Veteran would have responded “yes” when asked about recurrent back pain because a reasonable person would have interpreted the question to include symptoms of back pain. Moreover, the Veteran responded affirmatively when asked whether he had other conditions and the Board would thus expect the Veteran to have also responded affirmatively to having back pain. The spine was normal in the August 1997 entrance examination and the Veteran did not report any complaints, diagnosis, or treatment related to a back disorder in the history. In October 1997, the Veteran sought treatment for back pain that resulted from moving boxes upstairs into his house. He had follow-up treatment in November 1997 and December 1997 for a diagnosis of mechanical back pain. Thereafter, there were no complaints, diagnosis, or treatment related to a back disorder until May 2000. He fell while ice skating with his children and complained of mild back pain which he described as sore. Thereafter, until separation there was no other back complaints, diagnosis, or treatment. A report of a separation examination, if performed, is not in the record. A back disability is not shown by medical evidence until approximately May 2012, many years after the Veteran’s separation from service. The Veteran injured his back in April 2012 in a work-related injury. After seeking treatment in May 2012, the Veteran was diagnosed with a lumbar spine muscle strain. The Veteran states he injured his back while loading 80-120 pound ammunition off trucks and into tanks. He asserts he went to sick call for treatment. Since that time, he has had low back pain which has gradually worsened over time. He reported a similar history to a medical provider in 2014 but also reported a subsequent injury to his back while unloading pallets at work. The Veteran explained his lack of continuous treatment since separation was based upon his inability to afford medical treatment on a regular basis and sought treatment when he could pay for it. Initially, the Board notes the Veteran has not been diagnosed with lumbar spine arthritis, instead he has been diagnosed with a lumbosacral strain. As lumbar spine arthritis is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of arthritis is not shown, in-service incurrence of arthritis cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, as discussed below, the Veteran is not competent to offer an opinion that these symptoms represent the onset of arthritis. The Board finds the report of medical history and treatment from service and subsequent medical records more probative as these records, including X-ray images, demonstrate the Veteran does not have arthritis. That leaves the question as to whether the Veteran has a low back disability, other than arthritis, that is related to service. In an October 2013 VA examination, the examiner interviewed the Veteran, performed an examination, and reviewed the pertinent medical history. X-rays were negative although physical examination demonstrated limitations in range of motion. The VA examiner diagnosed low back pain. The examiner concluded that the Veteran had acute episodes of back pain in service that resolved in service and there is no evidence of chronic back problems until the Veteran’s occupational injury in April 2012. The Veteran also underwent physicals conducted by his employer and he made complaints of back pain in April and May 2014, stating he pulled his back recently. The physicals of July 2014 and June 2019 do not record any complaints of back pain. However, a VA medical center (VAMC) from November 2019 noted the Veteran has chronic low back pain. The Veteran presented for a VA examination in September 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The VA examiner diagnosed the Veteran with a lumbar strain based upon the physical examination, medical history, and contemporaneous normal X-rays. The examiner concluded it was less likely than not incurred in or caused by an in-service injury, event, or illness. During service, condition was acute only and effectively treated. There also is no evidence of chronicity of care. A nexus was therefore not been established. An October 2020 report from the Veteran’s chiropractor noted the Veteran complained of back pain which radiated down the right leg. In a December 2020 medical opinion, after reviewing the Veteran’s claims file, the VA examiner concluded that the Veteran’s current lumbar strain disability was not related to service, to include injuries noted in the service treatment records. In support of this conclusion, the examiner explained that there is no evidence of a chronic back conditions arising in service. The examiner reported that back pain noted in 1991 was not present on reentry into service on his 1997 entrance physical. The examiner reported that the pain in 1991 was acute and self-limited. The examiner reported that the Veteran had an episode of back pain in December 1997, without further notations through three years of active duty service. The examiner noted that this again strongly suggested an acute self-limited strain. The examiner reported that the Veteran had no issues associated with the back until many years post-service. The examiner opined that the Veteran’s episode of back pain in 1997 was more likely than not acute and self-limited, as evidenced by three additional years of service without care or complaints. The examiner opined that the Veteran’s lumbar strain was less likely than not was due to or incurred in service. The examiner concluded that as the Veteran had a workmen’s compensation claim for low back strain in 2012, the Veteran’s work injured was most likely onset of the Veterans back condition. The Board finds December 2020 VA opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. As noted, the Veteran, starting in October 1997, had a two to three month period of back pain and treatment. When he filed his claim, the Veteran identified this injury as the onset of his current back disorder. The circumstances of the injury differ. The service treatment records indicate he was moving boxes but the Veteran states it occurred while loading heavy ammunition. Nevertheless, the examiner concluded that this was an acute injury that resolved. As rationale, the examiner noted that the Veteran was able to continue with his military duties for years after it occurred. The Board interprets this statement by the examiner that if the Veteran had a continuing or chronic low back problem after the 1997 injury, he would not have been able to continue to maintain full active duties for over two, almost three years. Instead, after the injury, there would have been additional treatment visits for back pain. Thus, the VA examiner reasoned that if the Veteran had a back disability that originated in 1997 as he claims, it would have been noted in medical records at some point before his 2000 separation. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). The VA examiner instead identified the 2012 occupational injury as the more likely etiology for the Veteran’s back disability which was when treatment for a chronic back disorder began. The Board would expect that a reasonable person experiencing back pain would report it to a clinician if, as here, they were undergoing examination and treatment for other maladies during the time in question. In addition, given the nature of the injury, it would be difficult, if not impossible, for the Veteran to continue active duty as an armor crewman as the Veteran did without him seeking additional treatment. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his back symptoms began during service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or provide to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s medical records from service where he did not seek medical treatment while in service after December 1997 but continued performing his military duties without any noted problems until his separation in September 2000. The Board finds the reports of medical history and treatment in service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time For the above reasons, the preponderance of the evidence is against the claim and service connection for a low back sprain is denied. Allergic Rhinitis The Veteran has a current allergic disability. For example, at his September 2019 VA examination he was diagnosed with allergic rhinitis. Thus, the remaining question is whether the current allergic rhinitis disability is related to service. In a March 1997 periodic examination for the National Guard, the Veteran’s sinuses were normal, but he reported a history of hay fever. After the Veteran entered active duty in October 1997, service treatment records show complaints, and treatment starting in May 1998 for nasal congestion. In October 1998, he was diagnosed with a deviated septum with the Veteran noticing sinus problems since he arrived in Fort Hood. He stated there was no recent history of sinus problems. In November 1999, the Veteran reported complications from allergies since arriving at Fort Hood. He was diagnosed with seasonal allergy rhinitis. The Veteran thereafter continued to receive periodic treatment for allergic rhinitis and/or symptoms such as congestion and a runny nose. Following service, private treatment records establish seasonal allergies starting in 2011. As recently as November 2019, VAMC records document a history of chronic sinus congestion. The only treatment consists of over-the-counter medication. The Veteran asserts that exposure to significant dust and allergens at Fort Hood and later Bosnia aggravated his allergic rhinitis. Initially, the Board notes the Veteran filed a claim for service connection for either a sinusitis or rhinitis condition. The Veteran presented for a VA examination in September 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The VA examiner determined the Veteran had allergic rhinitis but did not have sinusitis. A X-ray at the examination demonstrated that the sinus was clear, and the Veteran did not have any findings, signs, to symptoms which may be attributable to sinusitis. The Board notes VA examiners in October 2013 and September 2020 also diagnosed allergic rhinitis. Accordingly, although the scope of the Veteran’s claim may have initially included sinusitis, see Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board concludes the only service connection issue before it is whether the Veteran’s allergic rhinitis is related to service. The VA examiner in October 2013 concluded, without rationale, that the Veteran’s claimed condition was nasal congestion associated with seasonal allergies. This was a pre-existing condition, not caused by or related to service or aggravated beyond natural progression by service. The September 2019 VA examiner concluded it was less likely than not that service directly caused the onset of allergic rhinitis. During service, allergic rhinitis was acute only. It was treated and resolved without evidence of chronicity of care. The VA examiner also noted the Veteran has been treated since separation for acute flare-ups, but no documentation exists that this is a chronic condition. Accordingly, the September 2019 VA examiner concluded a nexus between service and allergic rhinitis has not been established. In a September 2020 VA opinion, the examiner concluded that the Veteran’s allergic rhinitis did not arise during the active duty for training period (April 1991 to August 1991) but did arise before active duty from October 1997 to September 2000. The examiner concluded that the Veteran’s active service from October 1997 to September 2000 did not aggravate the allergic rhinitis beyond its natural progression. There is no evidence of allergic rhinitis in the April 1991 entry exam. Hay fever is documented just prior to the Veteran’s active duty period in a March 1997 periodic examination. Thus, the Veteran had pre-existing allergic rhinitis/hay fever developing after service in 1991 but prior to service in 1997. Therefore, the Veteran did not develop allergic rhinitis while in service. The Veteran was evaluated in October 1998 and February 1999 for difficulty breathing through the left nostril. Furthermore, a 26-month history of allergies was noted November 1999. This history is consistent with the onset noted above, prior to active service. During that evaluation in 1998 and early1999 a deviated septum (to the left) was noted. No history of trauma was documented and no explanation for the deviated septum was proffered. As to the effect of service upon the allergic rhinitis, the examiner explained that allergic rhinitis/hay fever was commonly seasonal and varies from geographic location to location (such as Bosnia or Fort Hood), with variable presentation among individuals. The examiner reported that as hay fever predated service but appears to have been a relatively recent event at that time, there is no evidence to support aggravation beyond its natural course. The examiner opined that the Veteran’s deviated septum more likely predated the onset of allergies, and the nasal congestion and turbinate hypertrophy created symptomatology due to the deviated septum. The Board finds that the allergic rhinitis disability clearly and unmistakably pre-existed service in 1997 as the Veteran had no evidence upon entry into the National Guard but reported hay fever while in the National Guard shortly before he entered active duty in 2000. Further, as noted, the Veteran admitted he had allergic rhinitis symptoms by the time he entered service but asserts while stationed at Fort Hood and later Bosnia, his symptoms became worse, i.e., the pre-existing allergic rhinitis was aggravated by his service. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). While the allergic rhinitis manifested in 1998, that incident is consistent with recurrent allergic or seasonal rhinitis and not aggravation beyond its natural progression. The Board interprets the September 2020 VA examiner’s report as a determination the evidence established that the Veteran’s pre-existing chronic allergic rhinitis was not aggravated beyond its natural progression. Instead, what the Veteran experienced in service represented the typical manifestations of a flare-up or acute episode of the condition. The VA examiner found no medically significant evidence the underlying allergic rhinitis, as opposed to symptoms, worsened due to aggravation in service The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, post-service records show the Veteran has periodically suffered from the symptoms of allergic rhinitis, but the disorder has remained stable requiring only over the counter medication to alleviate symptoms. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that allergic rhinitis is related to or aggravated by service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain or nasal congestion; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson, 581 F.3d 1313). The Veteran is not competent to independently render a medical diagnosis or provide the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Further, the Board notes that what is raised in the Veteran’s and his wife’s statements appear to be related to the medical evidence that the Veteran has had, at least at one point, a deviated septum. Indeed, the September 2020 VA examiner even concluded the deviated septum pre-existed the Veteran’s active service starting in 1997 and may be the cause of his current symptomatology. The October 2013 rating decision denied service connection for a deviated septum and the Veteran filed a notice of disagreement only to the claim for allergic rhinitis. He did not include in the notice of disagreement the separate claim for a deviated septum. The denial for service connection for a deviated septum is now final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. As noted above, the Veteran may file a claim to reopen the claim for service connection for a deviated septum on a form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160. That also applies to the Veteran’s assertions concerning sleep apnea. Id. For the above reasons, the preponderance of the evidence is against the claim and service connection for allergic rhinitis is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.