Citation Nr: 22015676 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-10 556A DATE: March 18, 2022 ORDER Service connection for allergic rhinitis, also known as hay fever, claimed as allergies, is denied. REMANDED The issues of entitlement to service connection for service connection for respiratory disease, to include chronic obstructive pulmonary disease, asthma, and sinusitis, is remanded. FINDING OF FACT The Veteran's currently diagnosed allergic rhinitis clearly and unmistakably existed prior to service and was not aggravated therein. CONCLUSION OF LAW The criteria for service connection for allergic rhinitis, claimed as allergies, have not been met. 38 U.S.C. §§ 1131, 1111; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1976 to September 1979. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2013 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for allergies, breathing problems, and a lung condition, to include asthma. The Veteran disagreed with that decision and timely perfected an appeal to the Board. The instant matters were then previously before the Board in August 2019 and April 2021 at which time they were remanded for further development. Service Connection for Allergies The Veteran contends that he has allergies that are the result of service. Specifically, the Veteran asserts that an allergy condition is secondary to asbestos exposure. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 U.S.C. § 1111, "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." When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If the presumption of soundness applies, the burden falls on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111 ("[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except . . . where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service."); see also Wagner, 370 F.3d at 1096. The presumption of soundness ordinarily operates to satisfy the second element of service connection without further proof, meaning that the presumption "strongly favors the conclusion that any occurrence of injury or disease during service establishes that the in-service medical problems were incurred in the line of duty." Horn, 25 Vet. App. at 236. "'Clear and unmistakable evidence,' as used in the governing statutes, has been interpreted to mean evidence that 'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). If there is clear and unmistakable evidence to show that a veteran's disability both preexisted service and was not aggravated by service, then he or she is not entitled to benefits for the preexisting condition. Wagner, 370 F.3d at 1096. If, however, VA fails to carry its burden with respect to either preexistence or lack of aggravation, then "whether and to what extent the veteran [is] entitled to compensation for the [disability] would be determined upon the assumption that the [disability] was incurred during service." Id. at 1094. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's diagnosed allergic rhinitis, which a December 2021 VA examination report confirms is currently present. Although the Veteran's July 1976 entrance examination report fails to reveal any indication of hay fever, allergic, rhinitis, or allergies, and his nose, sinuses, mouth and throat, were all clinically evaluated as normal, the evidence, including the Veteran's service treatment records and a December 2021 VA medical opinion, demonstrates that allergic rhinitis clearly and unmistakably existed prior to the Veteran's service. As noted in the December 2021 VA medical opinion, the Veteran himself reported that he had had ear, nose, or throat trouble at the time of July 1976 service entrance examination, and a service clinician indicated that the Veteran had had hay fever (also known as allergic rhinitis) for all of his life at the time of his service discharge examination in August 1979. The December 2021 VA examiner also conducted a longitudinal review of the Veteran's medical records, noting that the Veteran had been seen in service for colds and upper respiratory infections and that he seen at VA in February 2016 for an allergy and immunology consult, at which time he was assessed has having allergic rhinitis. The examiner stated that the Veteran's allergic rhinitis clearly and unmistakably existed prior to service. In light of this evidence, the Board finds that the Veteran's allergic rhinitis clearly and unmistakably pre-existed service. The Board also finds that the evidence clearly and unmistakably demonstrates that the Veteran's pre-existing allergic rhinitis was not aggravated in service. Indeed, there is no evidence suggestive of an increased in disability in service. Again, the Board points out that the VA examiner in December 2021 did a longitudinal review of the Veteran's medical records and based on that review, determined that the Veteran's preexisting allergic rhinitis was not aggravated beyond its normal progression by an in service injury, event, or illness. Although the Veteran believes that his allergies, diagnosed as allergic rhinitis are due to service, the evidence does not support such a finding. Rather, the evidence clearly and unmistakably demonstrates that allergic rhinitis preexisted service and was not aggravated in service beyond that natural progression of the disease, to include through asbestos exposure as claimed. Accordingly, service connection for allergic rhinitis, claimed as allergies, must be denied. Wagner, 370 F.3d at 1096 REASONS FOR REMAND The Veteran is seeking service connection for respiratory disease, which he claimed as breathing problems in March 2012. The current respiratory diseases of record are chronic obstructive pulmonary disease (COPD), asthma, and sinusitis, so his claim will be treated as including them. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The evidence shows that while in service, the Veteran had colds and upper respiratory infections, including with sinus congestion and stuffy nose, and that he claims his current disabilities are due to asbestos exposure in service. Additional information is needed concerning these disabilities before a decision can be made on them. Specifically, as discussed in the Board's prior remands, the medical evidence developed in connection with the claims for service connection for sinusitis, asthma, and COPD, the include the reports of August 2013 and March 2020 VA examinations, is insufficient for adjudication purposes. Unfortunately, the December 2021 VA medical opinion obtained pursuant to the terms of the Board's most recent remand is similarly inadequate to rely upon for adjudication purposes. This is so because the Veteran has been diagnosed as having three separate respiratory disabilities (asthma, COPD, and sinusitis). However, the medical opinion provided simply concludes that the Veteran's respiratory disability preexisted service and was not aggravated therein. Further, the examiner seemingly relied only on the Veteran's indication on his July 1976 report of medical history that he had had ear, nose, and throat trouble to conclude that his respiratory disability preexisted service. The examiner provided no reasoning for how a mere indication of ear, nose, and throat trouble prior to service clearly and unmistakably demonstrates that the Veteran's asthma, COPD, and sinusitis preexisted service. Accordingly, the Board cannot rely on the examiner's opinion in this case, as it does not contain a sufficient rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"); see also Vanerson, 12 Vet. App. at 262 ("[A]s a matter of law, the neurologist's refusal to opine regarding the etiology of the seizure disorder lacked any probative value on that question and could not be clear and unmistakable evidence."). Accordingly, an additional remand is warranted for the agency of original jurisdiction to obtain a new VA medical opinions, as set forth below. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (providing that when the VA Secretary provides the claimant with a VA medical examination or otherwise obtains a medical opinion, he must ensure that the examination provided or opinion obtained is adequate for purposes of the determination being made); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliances with the terms of the remand). The matters are REMANDED for the following action: Obtain an addendum VA medical opinion from a VA examiner who has not previously examined the Veteran, to determine the nature and etiology of his current COPD, asthma, and chronic sinusitis disabilities. Separate opinions must be given for each diagnosed respiratory disability. The examiner must review the claims file. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. It is noted that a history of childhood asthma is reported in a December 2021 VA medical opinion. The examiner should provide the following opinions, based on the record for each of the following conditions: Asthma: (a) Did the Veteran's current asthma disability clearly and unmistakably (medically undebatably) preexist entrance to active service? The examiner should state what evidence supports that opinion, and how/why. Although the Veteran statements can be considered, mere reliance on the Veteran's indication of ear, nose, and throat trouble prior to service is sufficient. (b) If asthma is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that it was not aggravated (worsened beyond the natural progress of the disease) during service. (c) If asthma is not found to have clearly and unmistakably preexisted service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current asthma is etiologically related to active service or any event, disease, or injury during service, including due to the claimed in service asbestos exposure. For the purposes of these opinions, the examiner should assume that the Veteran was exposed to asbestos in service. COPD: (a) Did the Veteran's current COPD clearly and unmistakably (medically undebatably) preexist entrance to active service? The examiner should state what evidence supports that opinion, and how/why. Although the Veteran statements can be considered, mere reliance on the Veteran's indication of ear, nose, and throat trouble prior to service is sufficient. (b) If COPD is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that it was not aggravated (worsened beyond the natural progress of the disease) during service. (c) If COPD is not found to have clearly and unmistakably preexisted service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current asthma is etiologically related to active service or any event, disease, or injury during service, including due to the claimed in service asbestos exposure. For the purposes of these opinions, the examiner should assume that the Veteran was exposed to asbestos in service. Sinusitis; (a) Did the Veteran's current chronic sinusitis clearly and unmistakably (medically undebatably) preexist entrance to active service? The examiner should state what evidence supports that opinion, and how/why. Although the Veteran statements can be considered, mere reliance on the Veteran's indication of ear, nose, and throat trouble prior to service is sufficient. (b) If chronic sinusitis is found to have clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that it was not aggravated (worsened beyond the natural progress of the disease) during service. (c) If chronic sinusitis is not found to have clearly and unmistakably preexisted service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current asthma is etiologically related to active service or any event, disease, or injury during service, including due to the claimed in service asbestos exposure. For the purposes of these opinions, the examiner should assume that the Veteran was exposed to asbestos in service. (c) For chronic obstructive pulmonary disease and chronic sinusitis, and for asthma (if it is not found that it clearly and unmistakably existed prior to service), the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each is etiologically related to active service or any event, disease, or injury during service, including whether it (1) began during active service or (2) was noted during service with continuity of the same symptomatology since service or (3) is due to claimed in service asbestos exposure. For the purposes of these opinions, the examiner should assume that the Veteran was exposed to asbestos in service. (Continued on the next page) A detailed rationale for all opinions expressed must be provided. Specifically, the reviewing clinician must discuss any significance of the Veteran's reported colds, including one with swollen eyes and sinus congestion in February 1977, and upper respiratory infections in service, including ones in October and November 1976 with a stuffy nose, as it pertains to current diagnoses. Further, any negative opinion must not be based solely on the lack of an in service record of the claimed disability. Again, the Board stresses that separate opinions must be given for each diagnosed respiratory disability. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.