Citation Nr: 21013984 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-49 376 DATE: March 11, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. FINDING OF FACT 1. It is not shown by clear and unmistakable evidence that allergic rhinitis preexisted service. 2. The preponderance of the evidence is against a finding that the Veteran’s allergic rhinitis was caused by service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2009 to November 2009, from January 2015 to May 2015, and from March 2018 to May 2018. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 1. Entitlement to service connection for allergic rhinitis The Veteran contends that his allergic rhinitis is related to his active duty service. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 C.F.R. § 3.304(b)(1). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that both: (1) the Veteran’s disease or injury preexisted service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C. § 1111. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C. § 1153. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” Cotant v. West, 17 Vet. App. 11 (2003) (citing Laposky v. Brown, 4 Vet. App. 331 (1993)). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The initial determination is whether allergic rhinitis was present prior to service. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. In the present case, in the Veteran’s August 2008 enlistment examination, there were no complaints of allergy issues, and there was no notation of allergic rhinitis or sinus issues. VA regulations expressly provide that the term “noted” denotes only such conditions as are recorded in examination reports, 38 C.F.R. § 3.304(b), and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Therefore, as no allergy condition or allergic rhinitis was appropriately noted during the Veteran’s enlistment examination, the presumption of soundness attaches with respect to this claim, see 38 U.S.C. § 1111, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disorder was both preexisting and not aggravated by service. In the Veteran’s January 2021 Board hearing, he testified that he did not have a diagnosis of allergic rhinitis prior to service. He testified that he first began experiencing nasal issues and related sores in 2011 and 2012, following a period of active duty service. He testified that he began a steroid nasal spray in 2014. Prior to service, his only official allergy may have been to cats. The Veteran explained that prior to service, he was not allergic to any pollen nor did he have any food allergies. The Veteran reported that approximately 6 months after his first period of service, he began having fairly bad allergic reactions to different foods, fruits and vegetables in particular. He contends that he did not have any such allergies prior to service. In a March 2016 VA examination, an examiner opined that the Veteran’s condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that after reviewing the Veteran’s allergy notes from 2014, there were no significant medical differences in his allergic rhinitis symptoms. As such, the examiner found that it was less likely than not that the Veteran’s allergic rhinitis was permanently aggravated beyond normal progression by his active duty. The Board finds that there is not clear and unmistakable evidence that the Veteran’s condition preexisted service. While a VA examiner included in his opinion that the Veteran’s condition “clearly and unmistakably existed prior to service,” the examiner did not provide any opinion to support the use of such language. In the examiner’s opinion, he highlighted the fact that the Veteran’s condition first began, per the Veteran, in 2010 or 2011 when he noticed food allergies, and became worse in 2014 when he started the use of a nasal spray. In addition, the Veteran has provided credible testimony indicating that his condition did not exist prior to service. While the March 2016 examiner provided that the Veteran’s condition was not permanently worsened by service, VA has not shown that the evidence clearly and unmistakably preexisted service. Specifically, as noted above, the Veteran has testified that his condition did not exist until service, and medical records show that the first instances of the Veteran’s allergic condition are noted in 2014. Because it is not undebatable that the Veteran’s condition existed prior to service, the presumption of soundness has not been rebutted. Since the presumption of soundness is not rebutted, the claim becomes one for direct service connection. Therefore, the issue is whether there is a nexus between the Veteran’s current allergic rhinitis and his in-service environmental exposures during the Gulf War. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In the Veteran’s March 2016 VA examination, the examiner opined that the Veteran’s disease of allergic rhinitis had a clear and specific etiology and diagnosis, and it was not related to any specific environmental exposure which may have occurred in the Gulf War. The examiner further opined that the Veteran’s allergic rhinitis did not begin while in the Gulf War region as would be expected if it were environmentally related; it began 2 to 3 years after leaving the Gulf War region, making it less likely than not related to any environmental exposures in that area. As such, the examiner found that it was less likely than not that the Veteran’s allergic rhinitis was related to any environmental exposures in that area. The Board finds that the March 2016 VA examiner’s opinion is competent and credible as the examiner considered all relevant evidence in the claims file and provided an adequate rationale. The Board has considered the Veteran’s lay statements asserting a nexus between his allergy condition and service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of allergy disorders. As the record does not reflect that the Veteran has such understanding or ability to relate an allergy disability to his active service, any contention regarding the etiology of his allergic rhinitis does not have probative value. The Board instead places great weight upon the March 2016 VA examiner’s opinion. The medical evidence of record indicates that the Veteran’s allergic rhinitis is less likely than not due to service. As such, the Board finds that the preponderance of the evidence weighs against finding that the Veteran’s allergic rhinitis is due to his period of service. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, Associate 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.