Citation Nr: 21032312 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-41 671 DATE: May 26, 2021 ORDER Entitlement to service connection for rhinitis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's rhinitis is related to his service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for rhinitis have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty February 1990 to December 1993. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board bifurcated the Veteran's claim, denying service connection for chronic sinusitis and remanding the claim for a sinus disorder other than chronic sinusitis to the RO for further evidentiary development. Entitlement to service connection for rhinitis Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). The diagnoses on the February 2014 Disability Benefits Questionnaire for Sinusitis, Rhinitis, and Other Conditions of the Nose, Throat, Larynx and Pharynx included rhinitis. The Veteran has thus met the current disability requirement. The Veteran's service treatment records list upper respiratory infections (URIs) or seasonal allergies in February 1990 (twice), January 1991, February 1991, March 1991, August 1991, October 1991, May 1992, December 1992, May 1993, and June 1993. He also credibly stated in a May 2010 statement that he was exposed to dust, asbestos, and toxic vapors at various times during his service. Therefore, the in-service injury element of the claim has been met. Turning to the third element, the "nexus" or causal relationship between the in-service illnesses and the current disability of rhinitis, there is conflicting medical evidence. The April 2020 medical opinion stated "The veteran's medical records support that any currently diagnosed condition(s) related to the veteran's claimed sinus other than sinusitis, including rhinitis, is/are at least as likely as not (50 percent or greater probability) either began during or was otherwise related to military service, to include any treatment for rhinorrhea, seasonal allergies, or URIS therein." However, the same medical opinion also stated that the Veteran's condition is less likely than not related to service. The negative conclusion in the April 2020 medical opinion was based on the physician's finding that the service treatment records show a normal number of URIs and that "there is no clear indication that he was having symptoms during service beyond the typical URI course." The physician did not explain her statement that the number of URIs reported in service in this case (at least eleven in four years) was normal. The opinion is also flawed because it relies on the absence of contemporaneous medical evidence of other URIs. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). As noted above, the Veteran's service treatment records include at least eleven instances of URIs or seasonal allergies in service and he has credibly alleged exposure to dusts and toxic fumes. In his September 1993 separation report of medical history, the Veteran reported chronic coughing. The physician's notes on that document acknowledged the coughing but speculated that it may have been related to cigarette smoking. (Continued on the next page) Given the lay evidence, the in-service illnesses, the exposure to various hazardous materials in service, the positive nexus statement, and the flawed nature of the negative nexus statement, the evidence is at least evenly balanced as to whether the Veteran's diagnosed rhinitis is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for rhinitis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.