ALLERGIC RHINITIS

Summary

The Veteran, an Army and Army National Guard veteran who served from August 1989 to August 1993, January 2003 to January 2004, June 2006 to April 2008, April 2008 to March 2009, May to September 2009, and September 2009 to February 2021, including Southwest Asia service during the Persian Gulf War, appeals the denial of service connection for chronic fatigue syndrome (CFS) and the grant of service connection for allergic rhinitis. The Board found service connection for allergic rhinitis warranted, noting that the Veteran's entrance examination did not note any issues with hay fever or allergies, but service treatment records during active duty showed assessments for allergic rhinitis and worsening symptoms. The Board applied the presumption of soundness and found that the evidence was not clear and unmistakable that the condition pre-existed service or was not aggravated by it, thus granting service connection. For CFS, the Board reviewed the Veteran's Persian Gulf service and the diagnostic criteria under 38 C.F.R. § 4.88a. The VA examiner noted that other conditions, specifically obstructive sleep apnea and psychiatric disabilities, could explain the Veteran's fatigue and that the criteria for CFS were not met. The Board agreed, concluding the evidence persuasively weighed against a CFS diagnosis. The Board also addressed incomplete service treatment records, finding VA satisfied its duty to assist. Service connection for allergic rhinitis is granted, and for CFS is denied.

Rationale

Presumption of soundness applies; Evidence in equipoise regarding onset during service; Not clear and unmistakable evidence of lack of aggravation

Full Decision Text

Citation Nr: A26038294
Decision Date: 04/23/26	Archive Date: 04/23/26

DOCKET NO. 210602-163468
DATE: April 23, 2026

ORDER

Entitlement to service connection for allergic rhinitis (claimed as sinusitis, pansinusitis chronic) is granted.

Entitlement to service connection for chronic fatigue syndrome (CFS) is denied.

FINDINGS OF FACT

1. There is not clear and unmistakable evidence that the Veteran's allergic rhinitis was not aggravated by military service.

2. The evidence is at least in relative equipoise that the Veteran's allergic rhinitis had its onset during active duty service.

3. The evidence is persuasively against finding that the Veteran had chronic fatigue syndrome during or proximate to the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for allergic rhinitis have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306.

2. The criteria for entitlement to service connection for CFS have not been met.    38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.88a.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1989 to August 1993, January 2003 to January 2004, June 2006 to April 2008, April 2008 to March 2009, May to September 2009, and September 2009 to February 2021; he also had periods of active duty training.  He served honorably in the U.S. Army and Army National Guard, including service in Southwest Asia during the Persian Gulf War.  The Board thanks the Veteran for his service to our country.

The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  In the rating decision, the agency of original jurisdiction (AOJ) made various favorable findings with respect to the matter of allergic rhinitis, which will be discussed below.  The AOJ made no favorable findings with respect to the claim for CFS.

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on October 29, 2024.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the 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(a), 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. 

Service Connection

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  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.  To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

When there is an approximate balance of
 3.304.  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.  To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, 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 the evidence is persuasively against the claim, in which case the claim is denied.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for allergic rhinitis

Entitlement to service connection for allergic rhinitis is warranted.

Generally, a Veteran is presumed sound at entry to service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).  In this case, there is a question as to whether the claimed allergic rhinitis preexisted the Veteran's military service.  In a December 1988 report of medical history, the Veteran endorsed having or having had hay fever, and the examiner noted nasal stuffiness from spring to fall with over the counter treatment.

There is no evidence of record that the Veteran was afforded an examination for any periods of active duty service after his initial period of active service from August 1989 to August 1993.  The Veteran's December 1988 entrance examination is absent of any notations of defects, infirmities, or disorders regarding hay fever, allergies, or allergic rhinitis.  Additionally, the evidence is at least in equipoise as to whether allergic rhinitis manifested during service.  Active duty service treatment records (STRs) include, during the Veteran's first period of service, an April 1993 STR in which the provider rendered an assessment of seasonal allergic rhinitis, and, during the last period of service, multiple STRs for treatment of allergic rhinitis.  Therefore, with respect to allergic rhinitis, the presumption of soundness attaches.  38 C.F.R. § 3.304(b).  Because the presumption of soundness attaches with respect to this disability, to rebut the presumption, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service.  Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  

Clear and unmistakable evidence is defined as obvious or manifest.  38 C.F.R. § 3.306(b).  Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'"  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 

In this case, the AOJ favorably found that the Veteran's allergic rhinitis existed prior to military service.  

Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition.  Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153).  This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation.  The burden is not met by finding "that the record contains insufficient evidence of aggravation."  Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms,
 service or that any "increase in disability [was] due to the natural progress of the preexisting condition.  Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153).  This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation.  The burden is not met by finding "that the record contains insufficient evidence of aggravation."  Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012).

Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).  Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).  

Here, the AOJ favorably found that the Veteran's service treatment records showed that his allergic rhinitis symptoms worsened.  This is consistent with other evidence of record showing worsening of his symptoms during his last period of service from symptoms for which he did not routinely take medication and which were not a big deal for him, to difficulty breathing and medication use almost daily.  In an October 2009 STR, the Veteran congested with congestion and sneezing.  In a May 2015 periodic health assessment, he reported a history of seasonal allergies but reported that he did not take medications routinely and that seasonal allergies were not a big deal for him.  In a March 2016 STR, he reported having sneezing, watery and itchy eyes, sinus pressure, fatigue, nasal discharge and scratchy throat but denied breathing difficulties.  In a July 2019 STR, he reported using Flonase and Zyrtec almost every day and requested a prescription.  In a November 2020 statement, he relayed experiencing continuous crusting on the right nostril, regular nosebleeds, and trouble breathing.  In a May 2021 VA examination report, the examiner stated that the Veteran's symptoms worsened during service and noted, with respect to functional impact, that the Veteran had difficulty breathing through his nose and had to work harder at running due to nasal congestion; in noting the functional limitations, the examiner did not distinguish between his diagnosed allergic rhinitis and deviated septum.

The most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service.  In the May 2021 VA examination report, the examiner noted that the Veteran's symptoms worsened during service and that he required prescription medication to treat his allergic rhinitis.  The examiner stated, without explanation or rationale, that it was consistent with the natural progression of rhinitis and concluded that the Veteran's allergic rhinitis did not progress beyond its natural progression due to an incident, injury, or event during active duty service.  The Board assigns this opinion little to no probative value.

Therefore, the presumption of soundness has not been rebutted.  When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service.  It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury.  The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service.  Horn, 25 Vet. App. 231, 233.  

Here, the AOJ favorably found that the Veteran had a confirmed diagnosis of allergic rhinitis.  The Veteran sought treatment during active service for allergic rhinitis and multiple providers rendered assessments of allergic rhinitis.  Read in the light most favorable to the Veteran, the evidence is at least in relative equipoise that the Veteran's allergic rhinitis had its onset during service.  Accordingly, service connection for
 necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury.  The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service.  Horn, 25 Vet. App. 231, 233.  

Here, the AOJ favorably found that the Veteran had a confirmed diagnosis of allergic rhinitis.  The Veteran sought treatment during active service for allergic rhinitis and multiple providers rendered assessments of allergic rhinitis.  Read in the light most favorable to the Veteran, the evidence is at least in relative equipoise that the Veteran's allergic rhinitis had its onset during service.  Accordingly, service connection for the disability is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

2. Entitlement to service connection for CFS

Entitlement to service connection for CFS is not warranted.

Service connection may be established for a Persian Gulf veteran with a qualifying chronic disability that manifested to any degree at any time.  Honoring our PACT Act of 2022, Pub. L. 117-168, sec. 405, § 1117(a)(1), 136 Stat. 1759 (2022); 38 C.F.R. § 3.317(a)(1)(i).  As noted above, the Veteran had Persian Gulf War service in Southwest Asia qualifying for application of the provisions of 38 C.F.R. § 3.317.  Chronic fatigue syndrome is a qualifying chronic disability.  38 C.F.R. § 3.317.

For VA purposes, the diagnosis of chronic fatigue syndrome requires:  (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance.  38 C.F.R. § 4.88a.

In this case, in a May 2021 VA examination report, the Veteran reported experiencing sleepiness, like he was always falling asleep, and that when driving he had to pull over a lot of times because he felt sleepy.  He reported that his CPAP helped but that he still felt fatigued with low energy, noting that he did not know whether it had to do with his depression.  He reported usually getting 8 hours of sleep.  The examiner noted that other clinical conditions that may produce similar symptoms had not been excluded by history, physical examination and/or laboratory tests to the extent possible, noting that the Veteran had obstructive sleep apnea and psychiatric disabilities which had symptoms of fatigue.  The examiner noted that the Veteran did not have an acute onset of CFS and that debilitating fatigue had not reduced daily activity level to less than 50 percent of the pre-illness level.  The examiner concluded that the Veteran did not have a diagnosis of CFS as he had other medical conditions which explained his fatigue.

The Board concludes that the evidence is persuasively against finding that the second requirement under 38 C.F.R. § 4.88a has been met.  The examiner affirmatively indicated that the Veteran had other clinical condition that may produce similar symptoms, specifically obstructive sleep apnea and his psychiatric disabilities.  There is no evidence that the second requirement has been met.  

With respect to other disabilities manifesting in fatigue, the Veteran has obstructive sleep apnea which is service connected from the day after his separation from active duty service.  The record is silent for other diagnosed disabilities manifesting in fatigue current during or proximate to the period on appeal.

The Board acknowledges that the Veteran's service treatment records appear to be incomplete.  Specifically, the second pages of the Veteran's report of medical history and report of medical examination are not of record.  However, the Board concludes that VA has satisfied its duty to assist as further efforts to obtain the missing pages would be futile.  In a November 2020 STR from the 377th medical group, the provider noted that the Veteran had presented for his Separation History and Physical Exam (SHPE)
 fatigue, the Veteran has obstructive sleep apnea which is service connected from the day after his separation from active duty service.  The record is silent for other diagnosed disabilities manifesting in fatigue current during or proximate to the period on appeal.

The Board acknowledges that the Veteran's service treatment records appear to be incomplete.  Specifically, the second pages of the Veteran's report of medical history and report of medical examination are not of record.  However, the Board concludes that VA has satisfied its duty to assist as further efforts to obtain the missing pages would be futile.  In a November 2020 STR from the 377th medical group, the provider noted that the Veteran had presented for his Separation History and Physical Exam (SHPE) and that the SHPE had been completed and that the documents had been submitted to Health Artifact and Image Management Solution (HAIMS).  The date of the STR corresponds to the date of the Veteran's separation report of medical examination.  The five available pages of the Veteran's reports of medical examination and medical history each contain, in the fax headers, the date corresponding with the STR and the separation report of medical examination, a notation identifying the 377th medical group, and a notation of the page number, out of five total pages.  The first and third pages of the report of medical history are noted to be pages 1/5 and 2/5 of the fax and the first, third, and fourth pages of the report of medical examination are noted to be pages 3/5, 4/5, and 5/5 of the fax, indicating that the incomplete records were either received or sent by the 377th medical group.  Furthermore, in March 2021 the Army Records Processing Center submitted certification that a thorough review of all known DoD systems had been accomplished and that it had been concluded that no further STRs existed for the Veteran.  

Hence, after reviewing all the evidence of record, the Board finds that the evidence is persuasively against the claim for service connection for CFS as a current disability of CFS has not been diagnosed during or proximate to the appeal period.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.K. Vashaw, 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.