Citation Nr: 21026009 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-13 519 DATE: April 29, 2021 REMANDED Entitlement to service connection for allergies is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1972 to April 1975. The Board notes that the rating decision on appeal was issued in September 2017. In a January 2020 decision, the Board determined that the Veteran failed to provide new and material evidence, specifically noting that there was no evidence provided showing any current treatment for allergies. Thus, the Veteran’s previously denied service connection claim for allergies was not reopened. 38 C.F.R. § 3.303; Shade v. Shinseki, 24 Vet. App. 110 (2010). Additionally, the Board remanded the Veteran’s claim for entitlement to service connection for a back disability and denied entitlement to a compensable rating for bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2021, the CAVC granted a Joint Motion for Partial Remand (JMR) that vacated and remanded the portion of the January 2020 decision that denied reopening the previously denied claim for service connection for allergies. Specifically, the JMR determined the Board was incorrect in adjudicating the Veteran’s allergy claim as a request to reopen a previously denied claim, because the Regional Office’s (RO) September 2017 rating decision never became final. And, on remand, the Veteran’s allergy claim should be considered as one of entitlement to service connection, with the September 2017 rating decision being challenged. Also, the January 2021 JMR noted that the Veteran did not challenge the portion of the Board’s decision that denied entitlement to a compensable rating for bilateral hearing loss and requested a dismissal of the appeal with respect to the issue. Additionally, the Board’s decision to remand the Veteran’s claim of entitlement to service connection for a back disability, was not disturbed because it is not a final decision. The Board must now remand the issue to the Agency of Original Jurisdiction (AOJ) to properly adjudicate the claim. 1. Entitlement to service connection for allergies is remanded. The Board cannot make a fully-informed decision on the issue of entitlment to service connection for allergies because no VA examiner has opined whether the Veteran’s claimed allergis/rhinitis is at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran’s military service. As a preliminary matter, the Board finds that the Veteran is presumed sound upon entry to service. The presumption of soundness requires VA to assume that upon enlistment every veteran was “in sound condition . . . except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.” 38 U.S.C. § 1111. Once the presumption of soundness applies, the Secretary can only rebut the presumption by showing “clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation” of that condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, the Veteran’s March 1972 entrance examination noted no history of hay fever or sinusitis and found the Veteran to be good health. Further, the presumption cannot be rebutted, as there is a lack of “clear and unmistakable evidence” of a preexisting condition. Although the Veteran separation examination noted the Veteran had hay fever as a child, which had been asymptomatic since then, the record is silent as to any medical evidence of a formal diagnosis by a medical professional prior to service. Additionally, while the Veteran is competent to report having experienced symptoms of hay fever, he is not competent to provide a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the presumption of soundness applies. The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA treatment records, and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination in order to determine the current nature and etiology of his for his allergies/rhinitis. The claims file must be made available to and be reviewed by the examiner. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner should specifically indicate whether the Veteran has allergies/rhinitis and provide an opinion as to whether the diagnosed disability is at least as likely as not (50 percent or greater probability) occurred in or is otherwise etiologically related to the Veteran’s military service. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Also, the examiner should consider the following: • the Veteran’s service treatment records reflecting treatment for red eyes with mild congestion and red throat producing cough. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.