Citation Nr: 21040784 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-34 481 DATE: July 7, 2021 ORDER Entitlement to service connection for allergic rhinitis is denied. REMANDED Entitlement to service connection for folliculitis, previously addressed as hidradenitis suppurativa, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Allergies were noted on a September 2013 Reserve Enlistment Examination. 2. The evidence shows, clearly and unmistakably, that allergic rhinitis preexisted service, and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for allergic rhinitis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of active duty for training with the U.S. Navy Reserve from October 2013 to June 2014. He was mobilized to active duty service from June 2016 to April 2017. During the pendency of the appeal, the Veteran also served on active duty from April 2020 to June 2020. The matter comes on appeal from a July 2017 rating decision. The Veteran testified at a March 2020 Board videoconference hearing. The hearing transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1) and (3). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C. §§ 101(24), 106, 1110. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, unless clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. Of note is that the burdens and evidentiary standard applicable to determinations of whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard applied to whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 1. Entitlement to service connection for allergic rhinitis Prior to the submission of the Veteran's March 2017 claims for service connection, he served on two separate periods of service. He served on a period of ADT from October 2013 to June 2014, and he was mobilized to active duty service from June 2016 to April 2017. The Veteran contends in March 2020 hearing testimony that his allergies worsened in service. The Veteran has a current diagnosis of allergic rhinitis, shown by a April 2017 VA examination. Allergic rhinitis is defined as any allergic reaction of the nasal mucosa. See DORLAND'S MEDICAL DICTIONARY, 30th Ed., p.1628. A September 2013 Reserve Enlistment Examination shows that the Veteran reported allergies to cats and dust which resulted in watery eyes. He reported that no medications were needed for his allergies. The Board finds that allergies were noted at service entrance. A March 2014 service treatment report shows that the Veteran was requesting allergy medication. He reported having allergies to dust mites with flare-ups since being in San Antonio. His symptoms were reported to be ongoing since October 2013. He reported taking an allergy skin test just prior to joining the Navy, and being positive for dust mites. The Veteran was also treated for allergic rhinitis in November and December 2015 during his second period of service. The preponderance of the evidence shows that preexisting allergies, noted at service entrance, did not increase in severity during service. Moreover, the evidence shows that allergic rhinitis clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated in service. In that regard, a July 2017 VA medical opinion cited findings in service, to include the Veteran's report of allergies on a September 2013 Enlistment Examination and treatment for allergic rhinitis shown in service. The VA examiner opined that allergic rhinitis which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression in service. The examiner reasoned that the Veteran admitted to allergies to cats and dust prior to service, and while he was treated for allergic rhinitis in service, a review of the record showed no objective evidence of aggravation of his preexisting allergic rhinitis beyond its natural progression during his military service. The Board finds that the opinion is probative as it was based on a discussion and review of the medical evidence of record. The Veteran believes his allergic rhinitis was aggravated in service. However, the issue is medically complex and the Board finds that the July 2017 VA physician's opinion outweighs the Veteran's own lay assertions as to aggravation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the July 2017 opinion, and finds that service connection for allergic rhinitis is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for folliculitis, previously addressed as hidradenitis suppurativa, is remanded. During a March 2020 Board hearing, the Veteran requested a remand for claimed folliculitis. He contends that VA skin examinations did not address his diagnosis of folliculitis. Instead, an April 2017 VA examination addressed a diagnosis of hidradenitis suppurativa, which he contends he never submitted a claim for. A November 2017 addressed alopecia. The Veteran submitted a claim for folliculitis in March 2017, and the Agency of Original Jurisdiction (AOJ) denied service connection for hidradenitis suppurativa, claimed as folliculitis, in the July 2017 rating decision on appeal. Service treatment records identify treatment for folliculitis and pseudofolliculitis barbae during the Veteran's period of service from June 2016 to April 2017. Therefore, in order to afford every benefit of the doubt, remand for new VA examination is warranted to address whether the Veteran has a current diagnosis of folliculitis which is related to service. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran served on a period of ADT from October 2013 to June 2014 and was mobilized to active duty service from June 2016 to April 2017. He contends that sleep apnea was incurred during the period of ADT. In hearing testimony and in lay statements from his wife and friends, he indicates that symptoms of snoring and breathing problems during sleep were noted after he returned from ADT in 2014. He testified that, thereafter, he went to a private doctor for sleep problems and was prescribed melatonin prior to his sleep study. Service treatment records show that the Veteran submitted a Southcom Medical Waiver Request for sleep apnea prior at the time of his June 2016 enlistment. The Medical Waiver Request indicates that the Veteran was referred to REM Sleep Labs, Inc. by his primary care provider for a sleep study and sleep apnea was diagnosed during the August 2015 sleep study. The Board finds that a remand is warranted to obtain relevant treatment records from the Veteran's primary care provider dated from 2014 to 2015, and for records from REM Sleep Labs. A July 2017 VA medical opinion shows that sleep apnea clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated beyond its natural progression in service. However, it does not address whether sleep apnea was incurred during a period of ADT. The Veteran also submitted a September 2020 medical opinion from Dr. J.A. which addressed multiple theories of entitlement, and noted, in part, that sleep apnea could be a factor of the Veteran's anxiety or depression issues. The Board finds that an updated VA examination is warranted to address the additional lay and medical evidence of record, and to address all theories of entitlement raised by the record. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for REM Sleep Labs, and for his primary care provider who he identified as treating him for sleep problems from 2014 to 2015. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for folliculitis. While an April 2017 VA examination reflects a diagnosis of hidradenitis suppurativa, the Veteran has specified that he is not filing a claim for hidradenitis suppurativa, and is claiming service connection for folliculitis. The examiner must review the claims file. The VA examiner should state whether the Veteran has now, or at any time during the pendency of the appeal, a current diagnosis of folliculitis. If so, the examiner is asked to provide a response to the following: Is folliculitis at least as likely as not related to service, including treatment for folliculitis and pseudofolliculitis barbae during the Veteran's period of service from June 2016 to April 2017? Provide a rationale to support the opinion. 3. After the requested medical evidence has been associated with the record, obtain an addendum opinion from an appropriate clinician regarding the following: (a). Whether sleep apnea was, at least as likely as not, incurred during a period of ADT from October 2013 to June 2014? Please note that the Veteran served on two periods of service, a period of ADT from October 2013 to June 2014, and a period of active duty service from June 2016 to April 2017. The opinion should address the Veteran's contention asserting that sleep apnea symptoms were noted just after ADT, and should address additional lay and medical evidence that was added to the record in September 2020. (b). Whether sleep apnea was, at least as likely as not, proximately due to a service-connected psychiatric disability/aggravated beyond its natural progression by service-connected disability as asserted in a September 2020 private opinion. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.