Citation Nr: 21024334 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-12 942 DATE: April 22, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. FINDING OF FACT The Veteran’s allergic rhinitis (seasonal allergies) clearly and unmistakably preexisted his service and clearly and unmistakably was not aggravated during or by his service – meaning worsened beyond its natural progression. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for allergic rhinitis. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from July to November 2007 and active duty from July 2008 to May 2009. In a July 2018 decision, the Board denied this claim for service connection for allergic rhinitis (claimed as a sinus condition). The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In August 2019, pursuant to agreement in a July 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the portion of the Board’s decision denying this claim and remanded it back to the Board for actions consistent with the JMPR. In February 2020, to this end, the Board, in turn, remanded this claim back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). The AOJ subsequently issued an August 2020 Supplemental Statement of the Case (SSOC) continuing to deny this claim, so it was returned to the Board. The Board, however, again remanded this claim in November 2020 for still more development and consideration – including for more medical comment concerning whether the Veteran’s allergic rhinitis clearly and unmistakably predated his service and clearly and unmistakably was not aggravated by his service. If not, medical comment also would be needed concerning whether his allergic rhinitis, instead, is as likely as not related or attributable to any period of qualifying service, including from exposure to the elements intrinsic to his foreign service in Iraq. There since has been the required compliance – certainly acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for allergic rhinitis is denied. The Veteran maintains that his allergic rhinitis is from exposure to burn pits, sand, and dust, including weekly, while deployed to Iraq from July/August 2008 to April 2009. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). According to VA regulation, every person employed in the active military, naval, or air service shall be 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 where evidence of medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are considered as “noted” at enlistment. See Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). The notation of a condition at the time of entrance into service, however, rebuts the presumption of soundness when entering service. In this circumstance, the Veteran resultantly cannot bring a claim for service connection for the disability on a direct-incurrence basis, only instead a claim of service-connected aggravation of the disability. And, in this situation, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. See Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).   Conversely, if a condition is not noted at time of entrance into service, then, to rebut the presumption of soundness when entering service, VA must show by clear and unmistakable evidence both that the condition pre-existed the Veteran’s service and was not aggravated by service (two prongs). See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such cases, the record must show there was an increase in disability during service to trigger the presumption of aggravation and, in turn, require VA to rebut that presumption with clear and unmistakable evidence showing the increase in disability was not beyond the condition's natural progression. Wagner, 370 F.3d at 1096; 38 C.F.R. § 3.306(b). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Due regard will be given the places, types, and circumstances of service and consideration will be accorded hardships of service. Id. VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner, 370 F.3d at 1096. See also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Mere temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).   Turning now to the relevant evidence, the service treatment records (STRs) show that, in April 2009, the Veteran reported to sick call complaining of allergies with symptoms during the previous 4 days. He reported getting allergy symptoms about once per year around that time. The diagnostic assessments were allergic rhinitis and common cold. During his October 2013 VA examination, the Veteran reported experiencing longstanding allergic rhinitis symptoms with a seasonal component that had worsened since his move to Iowa (after service). Following physical examination, the diagnosis was allergic rhinitis. The examiner opined that the allergic rhinitis is not due to or a result of events, injury, or conditions of service, such as exposure to burn pits, but that it was secondary to geographic allergen exposure. In the July 2019 JMPR, however, the parties agreed that, in denying the claim, the Board had failed to discuss whether that October 2013 VA examination was adequate in light of the fact that the examiner had failed to consider or discuss the in-service diagnosis of sinusitis and reported sinus problems during service, as documented in the STRs, including those dated in August 2007, November 2007 and July 2008. Consequently, the Board remanded this claim in February 2020 for this needed additional medical comment. And, in April 2020, a VA examiner resultantly again reviewed the Veteran’s STRs and concluded that, based on his review of the file, the Veteran’s allergic rhinitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Notably, this VA examiner observed that “[t]he first documented treatment for allergic rhinitis is during the Veteran’s second [active duty] service period, on 04/21/09 at 87th Medical Group. There is a diagnosis of Allergic Rhinitis and the medical history indicates that the condition is pre-existing and chronic.” The RO (AOJ) thus requested an addendum opinion to additionally determine whether the Veteran’s allergic rhinitis – if pre-existing, was aggravated by his active service. In August 2020, a separate VA examiner reviewed the Veteran’s STRs and marked a box indicating that “[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The rationale, however, conceded there were no records indicating the Veteran’s allergic rhinitis was a pre-existing condition. But the rationale also contradictorily stated that, “[i]f pre-existing allergic rhinitis is conceded, there is no objective evidence of progression or aggravation of the rhinitis beyond its natural course, due to any cause.” That notwithstanding, the rationale provided never acknowledged that the Veteran’s allergic rhinitis had pre-existed his service, despite marking a box next to a statement that acknowledged that the allergic rhinitis preexisted service. As such, the VA examiner’s initial conclusion that allergic rhinitis pre-existed service and rationale were contradictory, and the medical opinion itself resultantly was found in November 2020 by the Board to have minimal probative value. The Board therefore again remanded this claim in November 2020 for an additional opinion specifically addressing 1) whether the Veteran’s allergic rhinitis clearly and unmistakably preexisted his service, 2) whether, if preexisting service, the allergic rhinitis also clearly and unmistakably was not aggravated by his service, meaning worsened beyond its natural progression, and 3) if not preexisting his service, whether it is related to his service – and, specifically, to the exposures to elements in Iraq (foreign service) that he believes are the source or cause of his current condition. To this end, an additional medical opinion was then provided in February 2021. The February 2021 examiner concluded that, based on his review of the record, the Veteran’s allergic rhinitis was less likely than not incurred during or caused by his service. In explanation, this examiner pointed out that treatment records indicated the Veteran was seen for an upper respiratory infection in April 2009. The medical officer at the time specifically stated in the treatment notes that the acute rhinitis was “pre-existing and chronic.” It is additionally noted in the record that the Veteran stated that "he gets these episodes about once a year, at this time of year." Based on this information, the current VA examiner concluded the Veteran had pre-existing, chronic, seasonal, allergic rhinitis. The February 2021 examiner also noted an earlier incident of sinusitis associated with pharyngitis was documented in August 2007 and explained that it appeared to be acute and self-limited with response to treatment. This examiner further elaborated that this incident was unrelated to the upper respiratory infection noted later in 2009 because the Veteran's treatment in 2007 suggested, instead, a bacterial infection that would arise independently, as it is generally due to a specific Streptococcus organism. In addition, this examiner noted that the episode in 2007 would not be related to the 2009 respiratory infection because it was sinusitis associated with pharyngitis (sore throat). Consequently, based on these STRs, this examiner concluded there was no exacerbation/aggravation of the Veteran's pre-existing condition until 2013 (therefore several years after his service). In fact, the examiner also noted that the STRs indicated the Veteran had experienced a relatively mild natural course during his service that did not suggest aggravation beyond a natural course. According to that examiner, the first notations of active treatment specifically for the Veteran’s allergic rhinitis, occur in October 2013, when he notes "never really a problem until moving to Iowa." In the October 2013 DBQ, the examiner notes a "remote onset of the condition with a strong seasonal component. Worse since moving to Iowa." The examiner noted the Veteran “clearly had relative quiescence of the condition” until 2013, after moving to a different location (i.e., to Iowa). Consequently, there is no evidence of aggravation beyond the natural course of the Veteran's allergic rhinitis due to his active duty service. Finally, the February 2021 examiner concluded that this also renders the direct service connection question moot, as it was clearly and unmistakably a pre-existing condition not caused by service nor aggravated by service. This includes possible exposures while serving overseas in Iraq and other locations. The Board affords this VA compensation examiner’s opinion significant probative weight because it provides a well-reasoned medical explanation based on accurate, relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Regarding the Veteran’s contention that his allergic rhinitis is related to his service, or was aggravated by it while in Iraq, he is a layman and has not demonstrated or alleged expertise in establishing, or determining the cause of, allergic rhinitis or when it has been exacerbated. See 38 C.F.R. § 3.159(a)(1) and (2).   These determinations are beyond the realm of common knowledge of a layman and incapable of resolution by mere lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). He has not provided any supporting medical opinion or medical treatise evidence, does not cite to supporting factual data, and does not provide an explanation for his lay opinion that his condition is related to his military service. Therefore, his lay opinion cannot be assigned any significant probative value. While a layperson is qualified to testify about observable matters, the cause of a specific medical condition like this one at issue – since complex rather than merely simply, is a question beyond the scope of common knowledge or lay observation and requires medical training and expertise. For these reasons and bases, the preponderance of the evidence is still against this claim, so it again must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.