Citation Nr: 21014812 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-06 819A DATE: March 15, 2021 REMANDED Entitlement to service connection for a sinus disability, to include sinusitis and/or allergic rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 2009 to September 2009, and from July 2011 to March 2012, to include service in Afghanistan. She also had service in the United States Army Reserve, to include a period of active duty for training (ACDUTRA) from January 2006 to June 2006. Her decorations include the Global War on Terrorism Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The issue on appeal was previously before the Board in October 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Although the Board regrets the additional delay, another remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claim. Entitlement to service connection for a sinus condition, to include sinusitis and/or allergic rhinitis is remanded. The Veteran seeks to establish service connection for a sinus condition. She asserts that she developed a sinus condition during service, alleging that the poor air quality in Afghanistan caused complications in her nasal cavity, and that the condition has persisted since. Service treatment records reflect complaints of allergic rhinitis, sinusitis, and sinus pain. See, e.g., February 2006, September 2011, and January 2012 service treatment records. The Veteran underwent a VA examination in September 2019. The examiner noted that the Veteran did not have a diagnosis of chronic sinusitis, but did have a diagnosis of allergic rhinitis. As to the allergic rhinitis, the examiner opined that it was less likely than not caused by, incurred in, or otherwise causally related to one or more of the Veteran’s periods of active service. In support of that conclusion, the examiner found that the Veteran had a long history of allergic rhinitis, predating her first period of service in 2006. More specifically, it was noted that she reported an allergy to pollen at the time of her enlistment examination in November 2005, with a history of itchy eyes and sneezing. The examiner observed that allergic rhinitis often requires a few years of allergen exposure to develop the signs and symptoms; that the condition continues to have increased sensitivity over time; that her condition would be expected to get progressively worse; and that, although she started medication in 2008, that did not mean that her allergic rhinitis was aggravated by service, as that was the natural progress of the condition. The examiner concluded, “Since her allergic rhinitis occurred before her service periods, it is LESS likely than not that the condition is caused by, incurred in, or otherwise etiologically related to one or more periods of active service.” (Emphasis in original.) The term “active military, naval, or air service” includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In this case, the Veteran has been service connected for disability of the right knee based on her period of service from January to June 2006. See April 2009 rating decision. Accordingly, that period of service is properly considered a period of active military service. Under applicable law, every veteran who served in the active military, naval, or air service after December 31, 1946 is 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 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as “noted,” 38 C.F.R. § 3.304(b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3 03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service—the second step necessary to rebut the presumption of soundness—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, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. Under 38 C.F.R. § 3.380, diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Moreover, increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. Here, although an allergy to pollen with a history of itchy eyes and sneezing was noted at the time of the Veteran’s enlistment examination in November 2005, the presence of allergic rhinitis was not specifically noted at that time. As such, the Veteran is entitled to the presumption of soundness as it relates to that condition. As noted above, that presumption can only be rebutted by clear and unmistakable evidence both that the disease existed prior to service and that it was not aggravated by service. The September 2019 examiner’s opinion is not entirely responsive to that standard. Accordingly, an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and her representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, make arrangements to have the VA examiner who prepared the September 2019 VA examination report reviewed the expanded record. After reviewing the record, the examiner should provide an addendum opinion addressing each of the following questions: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran’s allergic rhinitis existed prior to her entry into service in January 2006? b. If it is clear and unmistakable that the Veteran’s allergic rhinitis existed prior to her entry into service in January 2006, is it also clear and unmistakable that the condition did not permanently increase in severity during any of her subsequent service periods beyond the natural progress of the disease? A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental   statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, Law Clerk 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.