Citation Nr: 21015167 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-37 899 DATE: March 16, 2021 ORDER Service connection for allergic rhinitis, claimed as allergies, is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran has allergic rhinitis which has been related to treat his service-connected chronic sinusitis. CONCLUSION OF LAW Service connection for allergic rhinitis is established. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to June 2009 and January 2012 to September 2012. This case comes on appeal to the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This case was previously before the Board in March 2020 at which time the above issue was remanded for additional development. The Board notes that the Veteran has also perfected an appeal of an October 2020 rating decision which continued a noncompensable disability rating for migraines. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA became effective on February 19, 2019 and the modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. As the appeal regarding an increased rating for migraines is under the AMA system (as opposed to the currently docketed appeal in the legacy system) and as the increased rating claim is not yet ready for review, it will not be addressed by the Board at this time. Legal Criteria Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Analysis The Veteran alleges that he experiences allergic rhinitis secondary to his exposure to burning pits during his military service in Afghanistan. By way of history, the Veteran has a significant history of sinus problems and is currently service-connected for chronic sinusitis, rated as 50 percent disabling, the highest rating possible under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6513. The Veteran submitted an initial claim for service connection for “allergies” in August 2014. In connection with this claim, he was afforded a VA sinuses examination in February 2015. Significantly, the Veteran reported that he suffered from nasal allergies and a runny nose since he was a young boy but, when he went to Kuwait and Afghanistan, he developed chronic sinus congestion. The examiner diagnosed allergic rhinitis as well as chronic sinusitis and opined that the Veteran’s allergic rhinitis was not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. As rationale for this opinion, the examiner wrote that the Veteran’s allergic rhinitis was a pre-existing condition as the Veteran suffered from allergic rhinitis with symptoms of nasal allergy and rhinorrhea since he was a boy and that the condition did not aggravate beyond its natural course during his deployment. In the March 2020 remand, the Board found that the February 2015 VA opinion is inadequate as: (1) it is unclear how the February 2015 VA examiner came to the conclusion that the Veteran’s allergic rhinitis clearly and unmistakably pre-existed his military service as pre-enlistment examinations and reports of medical history are negative for allergic rhinitis. Significantly, in a September 2008 report of medical history, the Veteran denied asthma or any breathing problems related to exercise, weather, pollens, etc.” and “sinusitis.” Also, a September 2008 examination report shows normal nose and sinuses. (2) The February 2015 VA examiner also did not provide the necessary opinion of whether there is clear and unmistakable evidence that the Veteran’s allergic rhinitis existed prior to service and/or was not aggravated during service, which is a higher, “onerous” evidentiary standard that must be met by VA. Finally, (3) the February 2015 VA examiner did not provide a medical opinion as to whether the Veteran’s allergic rhinitis is either to secondary to or aggravated by his service-connected sinusitis. Pursuant to the March 2020 Board remand, another VA examination/opinion was obtained in January 2021. This examination report also shows diagnoses of both chronic sinusitis and allergic rhinitis. Significantly, the examiner found that the Veteran’s allergic rhinitis did not pre-exist the Veteran’s military service and provided a negative nexus opinion with regard to direct service connection, but did not provide the requested opinion regarding secondary service connection. However, the examiner did opine that the Veteran’s allergic rhinitis was at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected chronic sinusitis. As rationale for this opinion, the examiner noted that, medically speaking, sinusitis and rhinitis often co-exist. Therefore, when taking into consideration the Veterans’ statements, and medical records/physical examination, the January 2021 VA examiner found that the two conditions “most likely have been present in this case.” The January 2021 VA opinion that the Veteran’s allergic rhinitis was at least as likely as not aggravated beyond its natural progression by the Veteran’s service-connected chronic sinusitis supports the claim of entitlement to service connection for allergic rhinitis as secondary to the Veteran’s service-connected chronic sinusitis. As such, the Board will resolve reasonable doubt in favor of the Veteran and find that the Veteran’s allergic rhinitis is due to his service-connected chronic sinusitis.  Therefore, service connection for allergic rhinitis is warranted.  Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.