Citation Nr: 22010570 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 13-28 350A DATE: February 24, 2022 ORDER Entitlement to service connection for rhinitis is granted. Entitlement to service connection for deviated septum is granted. FINDINGS OF FACT 1. The evidence is in at least relative equipoise as to whether the Veteran's rhinitis was incurred in or otherwise related to service. 2. The evidence is in at least relative equipoise as to whether the Veteran's deviated septum was incurred in or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rhinitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for deviated septum have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2018, July 2020, April 2021, and August 2021 and was remanded for additional development. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1112, 1133; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Rhinitis The Veteran contends that his rhinitis disability is due to service. For the following reasons, the Board finds that service connection for rhinitis is warranted. The evidence of record indicates that the Veteran currently has a rhinitis disability. Specifically, the August 2010 VA examination shows a diagnosis of chronic rhinitis. Based on this evidence, the Board finds that the first element of service connection has been met. Service treatment records show that the Veteran was treated and diagnosed with rhinitis on multiple occasions. The evidence contained in the service treatment records showing treatment and diagnosis of rhinitis is sufficient to meet the second element of the service connection claim. At his February 1979 separation examination, the Veteran reported ear, nose, and throat trouble and frequent or severe headaches. The Veteran has stated that his allergic rhinitis continued to worsen since service. The evidence of record indicates that the third element of a nexus has been met. The Veteran's service treatment records indicating treatment and diagnosis of rhinitis, post-service diagnoses of rhinitis, and the Veteran's competent and credible lay statements indicating symptoms in and since service, is sufficient to establish that the Veteran's rhinitis had its onset in service. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"); 38 C.F.R. § 3.303 (a) ("service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces"). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's diagnosed rhinitis is related to service. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for rhinitis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Deviated septum The Veteran asserts entitlement to service connection for a deviated nasal septum. The Board notes the April 2021 Board remand noted the Veteran's entrance examination does not denote any defects or disorders of the nose and the Veteran denied any nose trouble. The April 2021 Board remand found that given the lack of medical evidence demonstrating that the Veteran's deviated septum existed prior to service, VA has not demonstrated by clear and unmistakable evidence that the disability existed prior to service and as such the Board concluded the Veteran should be afforded the presumption of soundness. An August 2010 VA examination shows a diagnosis of a deviated septum. The question remaining for the Board is whether the evidence supports his deviated septum was incurred or otherwise related to service. The Veteran's medical examination during enlistment shows a normal clinical evaluation of his nose. The Veteran's service treatment records show treatment for sinus congestion and nasal callus. On his exit examination the Veteran endorsed symptoms of a deviated septum, including frequent or severe headaches, nose trouble, sinusitis, and difficulty breathing. This evidence supports that the Veteran's deviated septum was incurred during service. (Continued on the next page) The Board recognizes that the November 2021 VA examiner found the Veteran's deviated septum occurred prior to service. However, VA has not demonstrated by clear and unmistakable evidence that the disability existed prior to service and the Board has concluded the Veteran should be afforded the presumption of soundness. Accordingly, the November 2021 VA opinion is assigned no probative evidence. In resolving any reasonable doubt in favor of the Veteran, the Boards finds that the Veteran has a current disability of deviated septum that was incurred during service. Accordingly, entitlement to service connection for a deviated septum is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.