ALLERGIC RHINITIS

Summary

The Veteran served from September 1989 to August 1991 and again from January 2004 to May 2004, including service in Southwest Asia from December 1990 to August 1991. The Veteran appealed the denial of service connection for allergic rhinitis and diabetes mellitus type II. For allergic rhinitis, the Board found a current diagnosis and service in Southwest Asia, and relied on a March 2021 VA examination which opined the condition was at least as likely as not related to service due to its onset during service. Resolving doubt in the Veteran's favor, service connection for allergic rhinitis was granted. For diabetes mellitus type II, the Veteran claimed it was caused by unhealthy food, including MREs, during service. While the Veteran has a current diagnosis, the Board found no evidence of diabetes during service, and the initial diagnosis occurred more than one year after separation, precluding presumptive service connection. The Board also determined that a VA examination was not required as there was no competent or credible evidence linking the diabetes to service, and the Veteran's contentions were raised for the first time at a hearing, making it not a pre-decisional duty to assist error. The Board also noted that the PACT Act's duty to assist for toxic exposure risk activity (TERA) examinations was not applicable to the May 2021 rating decision. The evidence was persuasively against a direct service connection for diabetes, and the benefit-of-the-doubt doctrine was not applicable. Service connection for diabetes mellitus type II was denied.

Rationale

Current diagnosis of allergic rhinitis; Service in Southwest Asia; VA exam found condition at least as likely as not related to service; Benefit of the doubt resolved in Veteran's favor

Full Decision Text

Citation Nr: A26037005
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 210630-169316
DATE: April 21, 2026

ORDER

Entitlement to service connection for allergic rhinitis is granted.

Entitlement to service connection for diabetes mellitus, type II, is denied.

FINDINGS OF FACT

1. The Veteran's allergic rhinitis is related to service.

2. The Veteran's diabetes mellitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for allergic rhinitis are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for service connection for diabetes mellitus are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1989 to August 1991 and from January 2004 to May 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's hearing docket in her June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran appeared at a Board hearing on June 18, 2024; a transcript is of record.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 original claim rating decision, as well as any evidence submitted by the Veteran or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302. If evidence was submitted either (1) during the period after the AOJ issued the May 2021 rating decision and prior to the June 2024 Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Entitlement to service connection for allergic rhinitis

The Veteran believes that her allergic rhinitis was caused by her military service in Southwest Asia. Specifically, she served in Saudia Arabia from December 1990 to August 1991. See June 2024 hearing.

The Board recognizes that, effective August 5, 2021, VA amended its regulations to establish a presumption of service connection for veterans who have a qualifying period of service and certain respiratory conditions, including allergic rhinitis. 38 C.F.R. § 3.320; 86 FR 42724. However, because that amendment did not take effect until after the May 2021 rating decision on appeal was issued, the AOJ could not consider it, and any grant made pursuant to that amendment would have an effective date later than the date of claim. Therefore, the Board will not discuss this amendment further and will focus upon service connection on a direct-incurrence basis.

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, 
 claim. Therefore, the Board will not discuss this amendment further and will focus upon service connection on a direct-incurrence basis.

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).

The May 2021 rating decision made favorable findings that the Veteran has a current diagnosis of allergic rhinitis and that she had service in Southwest Asia. In general, the Board is bound by favorable findings in the Rating Decision on appeal. 38 C.F.R. § 20.801(a).

In the March 2021 VA examination, the Veteran reported that her allergic rhinitis began in 2004 while in service, but that she has not sought medical attention. She reported that she treats her allergic rhinitis with over-the-counter medication. The March 2021 VA examiner found that the Veteran's allergic rhinitis is at least as likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The rationale is that that the Veteran's condition began in 2004 while in service. The Board finds that this opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Upon review of the record, the Board finds the evidence to be at least in approximate balance as to whether the Veteran's allergic rhinitis was caused by service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for allergic rhinitis is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 782 (Fed. Cir. 2021) (en banc).

2. Entitlement to service connection for diabetes mellitus type II 

The Veteran contends that her diabetes mellitus was caused by eating unhealthy food, including Meal, Ready-to-Eat (MREs), during service. See June 2024 hearing.

Certain chronic diseases, including diabetes mellitus will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For diabetes mellitus, the presumptive period following separation from service is one year. 38 C.F.R. § 3.307.

The Veteran has a current diagnosis of diabetes mellitus as evidenced by May 2008 private treatment records. Diabetes mellitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board recognizes that there is contradictory evidence of record in that the Veteran denied diabetes in a January 2010 VA treatment note and was noted to be non-diabetic in a March 2013 diabetic retinal examination. However, in light of the private treatment notes indicating that she had a diagnosis of diabetes mellitus that was not under complete control, the Board will resolve doubt in the Veteran's favor and finds the evidence is at least in approximate balance that the Veteran has a current diagnosis of diabetes mellitus.

However, there is no evidence of diabetes mellitus during service. The February 2004 separation examination was silent as to diabetes mellitus, and the Veteran denied high or low blood sugar in her February 2004 report of medical history.

An August 2005 private treatment note finds a new diagnosis of diabetes mellitus, type II. As the initial diabetes mellitus diagnosis was made more than one year after separation from active duty in May 2004, service connection may not be granted on a presumptive basis. The
 a diagnosis of diabetes mellitus that was not under complete control, the Board will resolve doubt in the Veteran's favor and finds the evidence is at least in approximate balance that the Veteran has a current diagnosis of diabetes mellitus.

However, there is no evidence of diabetes mellitus during service. The February 2004 separation examination was silent as to diabetes mellitus, and the Veteran denied high or low blood sugar in her February 2004 report of medical history.

An August 2005 private treatment note finds a new diagnosis of diabetes mellitus, type II. As the initial diabetes mellitus diagnosis was made more than one year after separation from active duty in May 2004, service connection may not be granted on a presumptive basis. The Board recognizes that the Veteran reported an onset of 2004 for her diabetes mellitus in her January 2020 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits (Claim), but finds that the August 2005 private treatment note explicitly stating that the diagnosis of diabetes mellitus was new has greater probative value than the medical history contained in the Veteran's claim for disability benefits.

Although the Board has found that service connection is not warranted on a presumptive basis, it must now consider whether service connection is warranted on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The elements of service connection are discussed in the section above. A VA examination was not conducted as to diabetes mellitus. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there is otherwise sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5013A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

In this case, a VA examination is not required because there is no competent or credible evidence of an association with service. The Board recognizes that the Veteran testified in her June 2024 hearing that she believes her diabetes mellitus was caused by eating unhealthy foods, including MREs, during service. However, the Board cannot remand to obtain a VA examination regarding this theory of contention because it was raised for the first time at the June 2024 hearing. The Board is only able to remand for additional development when the AOJ has committed a pre-decisional duty to assist error. 38 C.F.R. § 20.802. It was not a pre-decisional duty to assist error for the AOJ not to obtain a VA examination regarding a theory or contention that had not yet been raised.

The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted effective August 10, 2022. Pub. L. No. 117-168, 136 Stat. 1759 (2022). Pursuant to the PACT Act, the duty to assist requires that a VA examination be conducted to determine whether a disability like diabetes mellitus was caused by toxic exposure risk activity (TERA). However, because the PACT Act was not yet enacted when the May 2021 rating decision on appeal was issued, it was not a pre-decisional duty to assist for the AOJ to not order a TERA examination. Therefore, the Board may not remand this matter to obtain a TERA examination. 38 C.F.R. § 20.802.

The Veteran did not argue that her diabetes mellitus was caused by environmental hazards in Southwest Asia, nor did she argue that her diabetes mellitus is an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). The February 2020 General Gulf War VA examination did not reasonably raise the possibility that the Veteran's diabetes mellitus was an undiagnosed illness. The definition of MUCMI explicitly excludes diabetes, describing it as a chronic multisymptom illnesses of partially understood etiology and pathophysiology. 38 C.F.R. § 3.317(a)(2)(ii). Therefore, the evidence of record at the time of the May 2021 rating decision did not trigger VA's
.

The Veteran did not argue that her diabetes mellitus was caused by environmental hazards in Southwest Asia, nor did she argue that her diabetes mellitus is an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). The February 2020 General Gulf War VA examination did not reasonably raise the possibility that the Veteran's diabetes mellitus was an undiagnosed illness. The definition of MUCMI explicitly excludes diabetes, describing it as a chronic multisymptom illnesses of partially understood etiology and pathophysiology. 38 C.F.R. § 3.317(a)(2)(ii). Therefore, the evidence of record at the time of the May 2021 rating decision did not trigger VA's duty to assist by obtaining a VA examination as to diabetes mellitus.

The Board recognizes that the Veteran sincerely believes that her diabetes mellitus was caused by eating unhealthy foods during service. However, there is no evidence that she has specialized medical training that would make her competent to provide an opinion regarding the etiology of diabetes mellitus. The issue is medically complex and involves medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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?

As the record does not contain any competent medical evidence indicating that the Veteran's military service caused her diabetes mellitus, the Board must deny entitlement to service connection. The evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for diabetes mellitus is not warranted. See 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776; 38 C.F.R. § 3.102.

 

 

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Budd, 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.