Citation Nr: 0703353 Decision Date: 02/02/07 Archive Date: 02/14/07 DOCKET NO. 03-13 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for allergic diathesis with primarily symptoms of rhinitis (also diagnosed as allergic and/or chronic rhinitis). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from November 1993 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied service connection for allergic diathesis with primarily symptoms of rhinitis (allergic rhinitis). When this matter was previously before the Board in May 2004 and June 2005, it was remanded for further development. FINDINGS OF FACT 1. The medical evidence clearly and unmistakably shows that the veteran's allergic rhinitis pre-existed service. 2. The medical evidence does not clearly and unmistakably show that the veteran's allergic rhinitis was not aggravated by such service. CONCLUSION OF LAW Allergic rhinitis was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.304 (2006); VAOPGCPREC 3-2003 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for allergic rhinitis, which represents a complete grant of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, no discussion of VA's duties to notify and assist is required. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the Board observed in the May 2004 and June 2005 remands, when examined at entry into active duty, no pertinent disability was noted, and during service, the veteran was seen on several occasions for allergy and sinus symptoms. The veteran and her representative acknowledge that the veteran had allergy problems prior to service but maintain that service connection is warranted because the disability was aggravated during, or as a consequence of, service. The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Here, VA cannot presume that, at service entry, the veteran was not sound with respect to her respiratory disability. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now provides that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. See 70 Fed. Reg. 23,027, 23,029 (2005). In light of the above, and because private and VA examiners have repeatedly diagnosed the veteran as having allergic rhinitis, the Board will focus on the evidence that relates to whether this disability clearly and unmistakably existed prior to service and whether there is clear and unmistakable evidence that the disability was not aggravated by service. The service medical records show that a September 2000 Medical Evaluation Board determined that the veteran's allergic rhinitis was aggravated by service, and there is no indication that the October 2000 Physical Evaluation Board did not concur in that assessment. As the Board observed in the June 2005 remand, the examiner who conducted the June 2004 VA examination opined that the veteran's allergic diathesis was well established and well diagnosed prior to entry into service and was not "particularly exacerbated" beyond its normal baseline condition following her entry into service. Further, in compliance with the Board's June 2005 remand instructions, in May 2006 a VA examiner commented that the veteran's allergic rhinitis more likely than not was unrelated to service because she required aggressive treatment of the condition prior to her entry into active duty. He added that she continued to require treatment after induction and that her allergies were no more aggravated by her military service than would have been had she not been in service. Thus, consistent with the veteran's statements, the medical evidence clearly and unmistakably shows that her allergic rhinitis existed prior to service. The medical evidence, however, does not clearly and unmistakably reflect that the condition was not aggravated by such service. Thus, because she was normal at service entrance with respect to this disability, and since the evidence does not clearly and unmistakably show that her allergic rhinitis both existed prior to service and was not aggravated by service, (and she currently suffers from allergic rhinitis), the criteria for service connection have been met. ORDER Service connection for allergic rhinitis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs