Citation Nr: 21040649 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-57 750 DATE: July 6, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. FINDING OF FACT The Veteran's allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated beyond its natural progression by service. CONCLUSION OF LAW The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from October 1985 to October 1988. She testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in October 2020. A transcript of the hearing is of record. Entitlement to service connection for allergic rhinitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). 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 C.F.R. § 3.304(b). Put differently, if a condition is not noted upon entrance into service, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Veteran's VA treatment records document a diagnosis of allergic rhinitis. She has been prescribed flunisolide in connection with her allergies. See e.g. December 2010; November 2015; and September 2016 VA Treatment Records (noting rhinitis with allergy component). Therefore, the first element of service connection has been met. The Veteran's theory of entitlement is that "ever since my first allergic reaction [in-service] my allergies, breathing and health continued to deteriorate over the years." See February 2016 Lay Statement. On enlistment into service, the Veteran denied having any sinusitis or allergies (hay fever). However, in the physician's summary section, it was noted that she was "allergic to cats. No other significant medical history." At her Board hearing, the Veteran reported experiencing allergies when they would cut grass during service. She also endorsed difficulties breathing during physical training. See Board Hearing Transcript, pgs. 3-4. As previously noted by the Board in its December 2020 remand, although the notation related to being allergic to cats does not, by itself, rebut the presumption of soundness, it suggests that the Veteran may have had allergic rhinitis prior to entering service. Given the Veteran's lay reports, the Board finds that the second element of service connection has also been met. Prior to addressing whether the Veteran's allergic rhinitis preexisted service, the Board wishes to acknowledge that at the Board hearing, the Veteran's attorney attempted to raise a new theory of entitlement. Specifically, she attempted to state that the Veteran once had an allergic reaction to migraine medication. The Board does not dispute that the Veteran is currently service-connected for migraines and the records does show that she is allergic to "anti-virals." See e.g. May 2011 VA Treatment Records. Her treatment records also show that she had a rash from omeprazole (which was taken for her non-service-connected GERD). However, there is no indication that her migraine medications have caused any allergic reactions at any point during the appeal period, nor do her treatment records show that any medications have negatively impacted her allergic rhinitis in any way. Moreover, although the Veteran is competent to report that she experienced an allergic reaction, an allergic reaction is not the same thing as allergic rhinitis and she is not competent to state any reaction was as a result of a specific medication. The Veteran's VA treatment records show that she has been prescribed several medications for various disabilities, many of which are not service-connected. Thus, the Board finds the medical evidence, which fails to even suggest any relationship between the Veteran's migraines and allergic rhinitis, weighs heavily against the contentions advanced by the Veteran's attorney regarding the theory of secondary service connection. Thus, a VA medical opinion addressing secondary service connection is not warranted and service connection on a secondary basis is also not warranted. Regarding direct service connection, the Board notes that the Veteran was afforded a VA examination for her allergic rhinitis in December 2015. The examiner confirmed a diagnosis of allergic rhinitis, but opined that it was less likely than not related to service because the Veteran's service treatment records did not document any complaints related to allergic rhinitis during service and she was not diagnosed until many years post-service. As previously noted by the Board, at her Board hearing, the Veteran's attorney contended that the VA medical opinion was based on an inaccurate factual basis. The examiner did not consider the Veteran's lay reports regarding having allergies when they would cut the grass and also having trouble breathing during physical training requirements during service. Thus, the examination report was deemed inadequate, and the Board sought additional VA medical opinion. Such VA medical opinion was obtained in January 2021. At that time, the examiner opined that the Veteran's allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated thereby. However, no rationale was provided for such opinion. The examiner relied exclusively on the lack of evidence in the Veteran's service treatment records in providing a negative opinion and again did not address the Veteran's lay statements. As such, the Board sought additional VA medical opinion in April 2021. In May 2021, the Veteran was afforded an additional in-person VA examination for her allergic rhinitis. At that time, she stated she had a history of cat allergy prior to service. She recounted her experience during basic training where she went through the gas chamber training and experienced symptoms of watery eyes, runny nose, congestion, and difficulty breathing. The examiner stated "this is known effects of CS gas used in all military gas chamber training. States that she was exposed to gas for approximately five minutes. States that after everyone left gas chamber they returned to barracks to shower. She did not need medical attention." The Veteran also reported "later in AIT she had issues with breathing any time she had to march somewhere. States that later when she was stationed in Germany, she was assigned to mow the grass and she developed symptoms of difficulty breathing and had to go back inside . . . She did not receive medical attention . . . Veteran diagnosed with rhinitis in 2011 and diagnosed with asthma in 2015." In addition to reviewing the entire claims file, the examiner noted specific pieces of evidence including the September 1985 service treatment record which stated the Veteran was allergic to cats on enlistment; January 2009 VA records noting an encounter for bronchitis with wheezing and shortness of breath; a December 2009 pharmacy note indicating that the Veteran had a prescription for Albuterol and also noted an allergy to Toprol XL; a February 2011 ENT consult for chronic rhinitis; and a January 2011 CT scan of neck which showed no evidence of chronic rhinitis or masses. The examiner opined that the Veteran's allergic rhinitis clearly and unmistakably preexisted her entry into service. As rationale, the examiner noted the Veteran's reported history of cat allergy on enlistment. The examiner stated: Cat allergy is characterized by symptoms of sneezing and running nose, nasal congestion (allergic rhinitis). This documentation would establish that the Veteran had allergic rhinitis condition prior to service. Condition of hay fever was not documented in STRs and per Veteran was not in her history. Consideration is given to the Veteran's statements of reported allergic reaction to medication, but medication allergy is not indicative of allergic rhinitis. Per current UpToDate guidelines, allergic rhinitis is diagnosed clinically based on history, examination findings, and allergy specific skin testing. Further, the examiner also opined that the Veteran's allergic rhinitis, which clearly and unmistakably preexisted service, clearly and unmistakably was not aggravated by service or any incident of service beyond its natural progression. As rationale, the examiner stated: After review of all available evidence, including all the notes in the Veteran's service treatment records from the Veteran's visits to sick call and medical appointments, there is no evidence found of any complaint of or reported symptoms of allergic rhinitis. As such, there is also no evidence found of any aggravation of Veteran's preexisting allergic rhinitis. Encounters for tonsillitis, otitis media, and upper respiratory infections are noted, but all are unrelated to allergic rhinitis. Additionally, sinus CT scar in 2011 at VA [administered approximately 23 years post-service,] showed no evidence of chronic rhinitis, establishing that the Veteran's condition has not been aggravated. Consideration is given to the Veteran's statements and current diagnosis of allergic rhinitis, but the condition was not aggravated beyond its natural progression. The examiner also specifically addressed the Veteran's lay statements made throughout the appeal period, including at the time of VA examination, and stated: Consideration has been given to the Veteran's statements and all available records have been reviewed. The Veteran has reported allergic reaction during early military service and given her history, it is most likely that she experienced a flare-up of allergic rhinitis, which [sic] existed prior to service. Persons with a history of allergic rhinitis commonly experience sudden flare-ups, most times the trigger is unknown, and the treatment would likely be the same as treatment for allergic reaction. The Board finds the May 2021 VA examination report highly probative. The examiner performed a thorough in-person examination and afforded the Veteran an opportunity to explain her in-service symptoms. After considering the Veteran's lay reports, the examiner provided a clear conclusion with supporting rationale. The examiner reviewed the entire claims file and identified affirmative evidence against the Veteran's claim consistent with the clear and unmistakable standard. The Veteran's attorney has not contended that the May 2021 VA medical opinion is inadequate based on the opinion rendered. Instead, she has contended "the examiner did not opine as to whether allergic rhinitis was service-connected under a direct theory, as ordered by the Board in its April 2021 remand order." The Board does not find the May 2021 inadequate. Specifically, the Board directed that if, and only if, there was no clearly and unmistakable evidence that the Veteran's allergic rhinitis preexisted service, then the examiner was asked to opine whether it was at least as likely as not that the Veteran's allergic rhinitis was directly related to service. However, the examiner found that there was clear and unmistakable evidence that the Veteran's allergic rhinitis preexisted service, such that an opinion addressing direct service connection was not warranted. The Board does not find the arguments advanced by the Veteran's attorney persuasive. The Board acknowledges the Veteran's lay reports regarding her allergic rhinitis. Specifically, she has asserted that environmental exposures in service worsened her allergies and essentially, as a result, her health has continued to decline since service. She also reported going to the hospital during service following an allergic reaction to medication. Although the Veteran is competent to report symptoms she experienced, as a lay person she is not competent to provide a medical opinion as to whether a disease has increased beyond natural progression due to an in-service exposure. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that non-expert witnesses are competent to report that which they have observed with their own senses). Such a medical opinion is beyond lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (noting the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence). Further, as noted by the May 2021 VA examiner, an allergic reaction is not indicative of allergic rhinitis. As the Veteran is not competent to provide the nexus opinion proffered, the opinion carries no probative weight. Instead, the Board affords more probative weight to the May 2021 VA examination, which was based on the available medical evidence of record, the Veteran's service treatment records, and considered the Veteran's lay reports regarding her symptoms. In sum, the preponderance of the evidence shows that the Veteran's allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by her period of service. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.