Citation Nr: 21024232 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-42 613A DATE: April 22, 2021 ORDER Entitlement to service connection for allergic rhinitis is granted. Entitlement to service connection for chronic sinusitis is granted. FINDINGS OF FACT 1. The Veteran’s allergic rhinitis, which clearly and unmistakably pre-existed her active service, was aggravated during her active service. 2. The Veteran’s chronic sinusitis is causally related to or aggravated by her service-connected allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria for service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310(b). 2. The criteria for service connection for chronic sinusitis as secondary to sinusitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1979 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the Board in February 2021. A transcript of that hearing has been associated with the claims file. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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).   1. Entitlement to service connection for allergic rhinitis The Veteran contends that her allergic rhinitis is causally related to or aggravated by her active service. The Board concludes that the Veteran has a current disability that was aggravated by her active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-2003. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See Id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows 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, 370 F.3d at 1096; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If this burden is met, then the veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. Id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1094, 1096; (holding that Congress intended to convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111); 38 C.F.R. § 3.322. The Board notes that the Veteran’s allergic rhinitis clearly and unmistakably pre-existed service. During service, while being treated for allergic rhinitis, the Veteran stated that she had a history of allergies and hay fever from the age of 12, recurring every year. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The question now becomes whether there is clear and unmistakable evidence that the Veteran’s allergic rhinitis was not aggravated by service. In this regard, VA may show a lack of aggravation by clear and unmistakable evidence that either (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If VA fails to rebut the presumption, the claim is one for service connection, not aggravation. After a careful review of the evidence, the Board finds there is not clear and unmistakable evidence that the Veteran’s allergic rhinitis was not aggravated by service. During service, the Veteran reported that regular antihistamines were no longer effective regarding her allergic rhinitis symptoms. Additionally, the Board notes that the record contains two opinions regarding whether the Veteran’s allergic rhinitis was aggravated during service. The VA examiner in December 2015 noted that the disease was not aggravated citing that the Veteran complained of hay fever in January 1981 and was tested for allergies in March 1982 and specifically noted no further treatment for allergies and no medical records showing continuation of medical therapy. The Board notes that the Veteran’s service treatment records show additional complaints of hay fever in October 1982 and allergy testing in November 1982, which were not addressed by the VA examiner. The examiner also did not address the Veteran’s lay statements regarding her continued use of medications since that time. The second opinion is a January 2015 private nexus opinion. The examiner had reviewed the records and was familiar with the Veteran’s current treatment and medical history. The examiner found that the Veteran’s allergic rhinitis was caused by or a result of the Veteran’s military service. She noted that the Veteran increased her treatment while in service, to include starting immunotherapy shortly after allergy testing. The Veteran also remained on a variety of allergy medications, saline rinses, and steroid nasal sprays since that time. The Board reiterates that, to rebut the second prong of the presumption of soundness, VA must establish by clear and unmistakable evidence that the Veteran’s allergic rhinitis was not aggravated by service. Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood i.e. it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Clear and unmistakable evidence is an onerous standard. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here there is little evidence establishing that the Veteran’s allergic rhinitis did not increase during service or that any increase was due to the natural progress of the preexisting disability. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). Since the presumption of soundness has not been rebutted, the Veteran is presumed sound at entry. Given that the Veteran has a current diagnosis of allergic rhinitis, the Veteran was sound upon entry into service, she had symptoms of allergic rhinitis during active service, those symptoms continued from service to the present time, and a private examiner has opined that his symptoms are causally related to her military service, the Board finds that the necessary elements to establish service connection have been met. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for allergic rhinitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for sinusitis. The Veteran contends that her sinusitis first manifested during active service and is causally related to her active service or that her sinusitis is caused or aggravated by her service-connected allergic rhinitis. February 2016 private treatment records show that the Veteran has a current diagnosis of chronic sinusitis, and in January 2015 a private examiner opined that the Veteran has frequent sinus infections requiring antibiotics, which are more frequent in patients with underlying chronic allergies and sinus or nasal inflammation. No other medical opinions of record address the relationship between the Veteran’s allergic rhinitis and her chronic sinusitis. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current chronic sinusitis is proximately due to or aggravated beyond its natural progression by her service-connected allergic rhinitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for chronic sinusitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, 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.