Citation Nr: 22005149 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 11-17 109 DATE: February 1, 2022 REMANDED Entitlement to service connection, to include as due to herbicide exposure or asbestos exposure, for allergic rhinitis or sinusitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in April 2018. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge's retirement in February 2020. The February 2020 notice requested a response within 30 days if the Veteran desired another hearing. The Veteran responded in April 2020 that he did not wish to appear for another Board hearing and wanted his case decided on the evidence of record. The appeal was last remanded by the Board in April 2021 for additional development. Regrettably, more development is still necessary. Entitlement to service connection, to include as due to herbicide exposure or asbestos exposure, for allergic rhinitis or sinusitis, is remanded. At the time of his enlistment, an October 1966 report of medical history indicated that the Veteran had a history of sinusitis. The Veteran appeared to have checked no to this question and then crossed out his answer and replied yes instead. Mild seasonal sinusitis was noted at the bottom of the report and signed by the examining physician. On a June 1970 report of medical history made at the time of the Veteran's separation from active-duty service, the Veteran initially responded in the affirmative to sinusitis but then crossed out the response and replied in the negative indicating that he did not have sinusitis at the time of his separation from active-duty service. Since sinusitis was noted at entrance, the presumption of soundness is not for application. At the time of the service entrance examination, 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 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. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). A pre-existing 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. 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a). Accordingly, an aggravation opinion is needed for the Veteran's pre-existing sinusitis. The Veteran asserted in an August 2012 statement in support of his claim that exposure to herbicides while stationed in Vietnam led to his constant use of allergy medication including antihistamines. The AOJ has conceded exposure to herbicides based on the Veteran's service in Vietnam. However, no VA opinion has addressed whether the Veteran's exposure to herbicides caused or aggravated his allergic rhinitis or sinusitis. Accordingly, a VA opinion should be obtained addressing whether the Veteran's exposure to herbicides is etiologically related to his allergic rhinitis or aggravated his pre-existing sinusitis. Moreover, the Veteran testified during an April 2018 Board hearing that his allergy problems began during service and were caused from exposure to asbestos contained in brakes he installed on airplanes and also asbestos present in his living quarters. VA has not conceded exposure to asbestos. The VA examiner should also opine as to whether the Veteran's unverified asbestos exposure caused or aggravated his allergic rhinitis or pre-existing sinusitis. In a May 2021 informal hearing presentation, the Veteran's representative argued that the Veteran's claim for allergic rhinitis should be expanded to include chronic sinusitis. In addition, the representative cited a September 2021 examination request and argued that the July 2021 VA examination was inadequate for failure to consider the Veteran's lay reports of continuous symptoms since service. The representative also argued that the July 2021 VA examination was inadequate due to internal inconsistencies because it found that the Veteran had sinusitis, rhinitis, and other pertinent physical findings but later stated that the Veteran had no symptoms or other pertinent physical findings. The September 2021 VA examination request contained in the Veteran's record for procedural purposes noted that "[t]he medical opinions and addendum medical opinion are insufficient because each relied on the absence of medical evidence to formulate the opinion." Since the Veteran's claim is being remanded, the Board notes that the VA examiner should also reconsider the Veteran's competent lay statements. By this remand, the Board makes no determination, express or implied, concerning the credibility of the Veteran's statements and contentions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran's sinus disability, to include sinusitis and allergic rhinitis and any other identified sinus disability. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a. Identify each sinus disability for which the Veteran had a diagnosis during the period on appeal, to include sinusitis and allergic rhinitis. b. If the VA examiner determines that the Veteran had a diagnosis of sinusitis during the period on appeal, the VA examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the sinusitis was aggravated during active-duty service. c. If the Veteran's sinusitis was aggravated during active duty-service, the examiner must provide an opinion regarding whether the aggravation of the sinusitis was clearly and unmistakably (undebatable) due to natural progress of the disease. In making such determination, the VA examiner must address the Veteran's conceded exposure to herbicides in Vietnam and the Veteran's unverified allegations of exposure to asbestos during active-duty service. The VA examiner must also address the Veteran's competent lay statements regarding continued symptomatology. d. For any other sinus diagnosis not noted upon entrance to active-duty service the VA examiner must opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability, to include allergic rhinitis, is causally or etiologically related to his military service? The VA examiner must address the Veteran's conceded exposure to herbicides in Vietnam and the Veteran's unverified allegations of exposure to asbestos during active-duty service. The VA examiner must also address the Veteran's competent lay statements regarding continued symptomatology. 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.