Citation Nr: 21025974 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-15 298 DATE: April 29, 2021 ORDER Entitlement to service connection for allergic rhinitis, to include as due to Agent Orange exposure, is denied. FINDINGS OF FACT 1.The Veteran’s allergic rhinitis was not incurred in or aggravated by active service. 2. The Veteran’s allergic rhinitis is not related to service, to include in-service Agent Orange exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 510; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1966 to February 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was previously before the Board in May 2017 and June 2018, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board finds substantial compliance with the May 2017 and June 2018 remands has occurred. Stegall v. West, 11 Vet. App. 268, 271(1998). In February 2019, the Veteran’s representative submitted a motion to withdraw as the Veteran’s representative. A Certification of Appeal (VA Form 8) dated September 2019 establishes that the claim was certified to the Board. In this regard, 38 C.F.R. § 20.6(b) (2019) (formerly 38 C.F.R. § 20.608 (2018)) governs motions to withdraw as representative prior to certification to the Board and provides that a representative may withdraw services as representative in a legacy appeal at any time prior to certification of the appeal to the Board of Veterans’ Appeals by the agency of original jurisdiction by complying with the requirements of § 14.631. Here, the withdrawal was filed prior to certification and is found to be in compliance with § 14.631. As such, the Board finds that the representative has properly withdrawn pursuant to 38 C.F.R. § 20.6(b), and the motion is therefore granted. 1. Entitlement to service connection for allergic rhinitis is denied. The Veteran asserts that his allergic rhinitis is due to Agent Orange exposure. See May 2009 Report of Contact. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.§ 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to certain herbicide agents, to include the commonly referred herbicide agent, Agent Orange, absent affirmative evidence to establish that the veteran was not exposed. See 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. 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 Veteran. 38 U.S.C. § 5107(b). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s allergic rhinitis preexisted his military service from January 1966 to February 1968. In the Veteran’s January 1966 Report of Medical History for initial enlistment, he reported hay fever. Also, the physician’s summary, and elaboration of all pertinent data section of the Medical History Report lists hay fever seasonal. The appellant established “veteran” status based on his period of active duty service. See Hill v. McDonald, 28 Vet. App. 243 (2016). The Veteran’s appeal is based on the period of active duty from January 1966 to February 1968. The Veteran’s January 1966 entrance examination is absent of any notations of defects, infirmities, or disorders. However, the most competent and credible evidence of record shows that the Veteran’s allergic rhinitis did not manifest during the relevant period of military service. Service treatment records from June 1966 show that the Veteran complained of a sore throat and headache. In May 1967 the Veteran’s service treatment records show the Veteran was diagnosed with an upper respiratory infection (URI) and had a temperature of 100 degrees with diarrhea. Service treatment records also note that in June 1967, the Veteran complained of pain in the back of his throat and was diagnosed with tonsilitis. Service treatment records from December 1967 show the Veteran reported headaches, and there is a notation of no allergies. In March 2009 the Veteran underwent an Agent Orange examination. The records note the Veteran’s examination was consistent with allergic rhinitis, however the diagnosis was not considered related to Agent Orange exposure at that time. In a June 2009 response from the National Personnel Records Center (3101 Print), it was reported that there was no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. In September 2009 VA sent a duty to assist letter to the Veteran requesting additional evidence showing that his rhinitis existed from military service to the present time. In October 2009 the Veteran responded by phone call that he had no more information to submit. Therefore, the Board finds exposure to Agent Orange is not conceded. In July 2017 the Veteran underwent a VA examination where the examiner diagnosed him with rhinitis. Therefore, the Board finds the Veteran has a current disability of allergic rhinitis. The examiner opined there is no objective medical evidence in the provided in-service records that could establish a direct nexus/relationship between the Veteran’s current allergic rhinitis condition and his military service. The examiner further stated there is no medical evidence in the service records to indicate aggravation of “hay fever/rhinitis” that was diagnosed prior to enlistment. The examiner further noted to clarify, rhinitis seen on recent exam did not precede military service, was not caused or incurred in service and hence not aggravated beyond natural progression by service, this was opined since there were no medical records that support this. In the June 2018 remand, the Board found this examination inadequate finding the examiner did not adequately address the Veteran’s lay statements that he began experiencing sinus headaches, facial pain, congestion, and post-nasal drip while on active duty in 1968. The Board further found the examiner relied heavily on the absence of treatment for rhinitis in service as a rationale for the negative opinions provided. Following the June 2018 Board remand, the Veteran was afforded another VA examination in July 2019. In this examination the examiner diagnosed the Veteran with allergic rhinitis and opined it clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran reported his rhinitis began when he was stationed in San Diego, CA during active duty in military service. The examiner notes the Veteran reported he had grown-up in the South and had never had allergic rhinitis symptoms prior to enlistment. The Veteran further reported initially it was misdiagnosed as recurrent URIs, and that the condition has stayed the same: sinus headaches, facial pain, rhinorrhea, congestion, and post-nasal drip. The examiner opined there is no medical evidence in the provided in-service records to indicate aggravation of “hay fever rhinitis,” that was diagnosed prior to enlistment. The examiner noted, to clarify; rhinitis seen on recent exam did not precede miliary service, was not caused or incurred in service and hence not aggravated beyond natural progression by service. The examiner notes this was opined since there were no medical records that support this. The examiner further stated medical records on May 11, 1967, reveal that the Veteran was diagnosed with URI. He opined that URI and allergic rhinitis have similar symptoms. He added both can cause sinus headaches, facial pain, rhinorrhea, congestion, post-nasal drip. However, he stated URI can cause low grade temperature which the Veteran had with a 100-degree temperature in service on May 11, 1967. The examiner noted allergic rhinitis does not have low grade temperature. The examiner concluded it is less likely than not that the Veteran had the allergic rhinitis while on service because there is no medical evidence of complaints of allergic rhinitis. Based upon a review of the above referenced service treatment records, as well as the July 2017 and July 2019 VA opinions that the Veteran’s rhinitis did not precede his military service, the Veteran’s allergic rhinitis did not clearly and unmistakably pre-exist service. The Board also finds the Veteran is not entitled to direct service connection for rhinitis, to include as due to agent orange exposure. As noted above, the Veteran was not exposed to Agent Orange as he was not in Vietnam, as alleged. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses, but not to make a complex diagnosis of rhinitis or etiology opinion that requires medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Notably, in September 1986 VA examination report, the Veteran did not report or request examination for rhinitis symptoms and his sinuses were considered normal on examination at that time. In addition, October 1989 and April 1995 VA examination reports reflects the Veteran requested evaluations related to his skin, however, he did not request evaluation for rhinitis symptoms, which tends to show that the Veteran did not have continuous rhinitis symptoms since service. Also, the records reflect he was diagnosed with allergic rhinitis in 1998, approximately 30 years after service. The Board finds the July 2019 VA examiner’s analysis of the of the symptoms of URI noted in service, and his current allergic rhinitis is highly probative. As he explained that although allergic rhinitis can cause sinus headaches, facial pain, rhinorrhea, congestion, and post-nasal drip, it is a URI that can cause a low-grade temperature, which the Veteran experienced in service on conjunction with his URI. The Board finds the July 2019 examination report highly probative and affords it more weight as it considered the Veteran’s lay statements, his entire medical history, and provided clear conclusions with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection for allergic rhinitis, to include as due to Agent Orange. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable, and service connection is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-56. (CONTINUED ON NEXT PAGE) Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.