Citation Nr: 21028484 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-41 518 DATE: May 11, 2021 ORDER Entitlement to service connection for allergic rhinitis and sinusitis is granted. FINDINGS OF FACT 1. The Veteran's allergic rhinitis and sinusitis clearly and unmistakably pre-existed service. 2. The evidence does not clearly and unmistakably establish that these conditions did not chronically worsen or increase in severity beyond the normal progression during the relevant period of active duty. CONCLUSION OF LAW The criteria to establish service connection for allergic rhinitis and sinusitis have been met. 38 U.S.C. §§ 101, 1110, 1111, 1154 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1988 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction was later transferred to the Atlanta, Georgia RO. In February 2015, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO; a transcript of that hearing has been associated with the claims file. In November 2019, the Veteran requested a Board videoconference hearing. However, based upon the findings in this decision, the Board finds that the denial of this request is harmless error. These matters have previously been before the Board in March 2015, July 2016, September 2017 and June 2018. 1. Entitlement to service connection for allergic rhinitis and sinusitis The Veteran contends that service connection is warranted for a chronic respiratory condition to include sinusitis and allergic rhinitis. He alleges that he did not have prior issues with allergies and upper respiratory or sinus infections prior to service and was exposed to unknown gases and dust while serving in the Persian Gulf. See February 2015 Hearing Transcript at pp. 27-31. He testified to experiencing chronic bloody noses while serving in the Persian Gulf, and experiences chronic upper respiratory infections, sinusitis and allergic rhinitis. Id. 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. § 1101; 38 C.F.R. § 3.303. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Due regard will be given to the places, types, and circumstances of service, and particular consideration will be accorded combat duty and other hardships of service. See 38 U.S.C. § 1154. Every veteran 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 disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran's service treatment records contain a medical examination conducted upon his entrance to active duty in November 1987. A review of the evidence of record reveals that the Veteran's entrance exam is void of any indication of a chronic disability of the respiratory system. Further, on his report of medical history, the Veteran checked the boxes indicating that he did not have sinusitis or hay fever. An October 2017 VA examination found that the Veteran's respiratory disorder clearly and unmistakably pre-existed service. By way of rationale, the examiner noted the Veteran's report of treatment for hay fever and allergic rhinitis conditions prior to and at the time of enlistment and the Veteran's affixed signature to the findings. Additionally, the examiner noted the Veteran's initials noting medications and medical conditions as taking medication for "ragweed allergies eyedrops" and notating "allergies" with specifics of "allergic to ragweed and barn dust." Finally, the examiner found that the enlistment physician notated detailed history based upon a review of existing medical records he had reviewed. The Board finds that the evidence clearly and unmistakably demonstrates that the Veteran's respiratory disorders pre-existed service. Thus, the inquiry turns to the question of whether the preexisting allergic rhinitis and sinusitis was not aggravated due to the Veteran's period of service. VA has the burden to rebut by clear and unmistakable proof that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. The Veteran reports that he was exposed to various chemicals while service in Iraq and submitted a February 2015 Department of Defense letter noting his service near an exploded ammunition dump in Kamisiya, Iraq. The Veteran testified that he experienced chronic bloody noses while in service and developed allergies to animals following service and underwent corrective surgery for sinusitis. The Veteran underwent a VA examination in July 2012 that found that his respiratory disorder was not related to his Gulf War service. By way of rationale he found that to provide an opinion on a relationship between the Veteran's sinusitis and allergic rhinitis would be mere speculation because the "medical literature does not yet support a cause and effect relationship between exposures and the subsequent development or persistence of allergic rhinitis and/or chronic sinusitis ... following the cessation of the exposure." The examiner did not opine on whether the Veteran's respiratory conditions were directly related to his service. The Veteran underwent a VA examination in August 2015 where the examiner found that the Veteran did not suffer from a pulmonary respiratory condition. She determined that his diagnosed allergic rhinitis was not caused by any diagnosed condition during his active service. The only rationale provided was that the Veteran's record showed a long history of allergic rhinitis during his active duty. However, the examiner did not address the Veteran's competent and credible lay statements of symptoms in service as well has pertinent symptomatology since service, nor the January 1993 Persian Gulf Registry where the Veteran reported breathing problems and allergies that began in service. The Veteran underwent a VA examination in February 2017 that found the Veteran's allergic rhinitis was less likely as not related to the Veteran's military service, to include environmental and chemical exposures during his service in the Southwest Asia theater of operations. The examiner reasoned that the Veteran's rhinitis preexisted service. The examiner failed to find rebut presumption of soundness by clear and unmistakable evidence that the Veteran's current respiratory disorder preexisted and was not aggravated by service. In an October 2017 VA examination, the examiner opined that it was clear and unmistakable that the Veteran had a respiratory disorder encompassed within the diagnosis of allergic rhinitis prior to service and opined there was no military-related aggravation of allergic rhinitis. The examiner failed to find whether it was clear and unmistakable that there was no aggravation in service. Finally, in a June 2019 VA examination, the examiner opined that it was clear and unmistakable that the Veteran's pre-existing allergic rhinitis disability was not aggravated during service. By way of rationale, the examiner opined that " if the [allergic rhinitis] had been worsened by service, there should have been treatment in service and immediately after service" and that "he was allergic to "barndust" prior to service this could possibly be related to animals". The Board notes that the existence of a possibility directly contradicts the principle of a "clear and unmistakable" finding against aggravation. The examiner included a history of the onset of his allergies; however, this history did not contain the Veteran's reports from his hearing testimony that allergies began immediately following service, he did not visit doctors immediately following service because of his lack of insurance, or the 1993 Gulf War Registry, and based his opinion on a lack of documentation in service or immediately thereafter. This opinion also did not address the Veteran's chronic sinusitis. In this case, the presumption of aggravation has not been rebutted with clear and unmistakable proof. The evidence is not undebatable that the symptomatic manifestations immediately following the Veteran's service were due to the natural progress of his allergic rhinitis and chronic sinusitis conditions. While there have been numerous opinions obtained the Board finds that they have not met the heightened evidentiary burden of an affirmative showing that the Veteran's condition did not undergo an aggravation, and failed to discuss the dozens of medical reports of sinusitis and allergic rhinitis in the years subsequent to the Veteran's service. The medical evidence of record shows that the Veteran has had an allergic rhinitis and sinusitis during the period on appeal. The Board finds that the evidence does not rise to the level of clear and unmistakable proof that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression and therefore service connection for these conditions is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.