BVA9507815 DOCKET NO. 93-12 256 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of pharyngitis. 2. Entitlement to service connection for residuals of an allergic reaction to penicillin. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from July 1959 to July 1962 and from September 1964 to August 1968. In August 1989, the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denied the veteran's claims for service connection for residuals of pharyngitis and an allergic reaction to a penicillin shot. He appealed his case to the Board of Veterans' Appeals (Board), but the case was temporarily held in abeyance at his request while another issue, concerning a skin condition allegedly caused by exposure to Agent Orange during service, was pending review. During the course of his appeal, the veteran requested and was offered several opportunities to testify at a hearing (before a hearing officer at the RO and before a member of the Board), but ultimately indicated that he did not want a hearing. In a July 1993 statement, a representative of the veteran requested that an additional claim for service connection for a bilateral knee disorder be referred to the RO for consideration. As this matter has not been developed for appellate review by the Board, it is referred to the RO for appropriate action and development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he experienced an allergic reaction during service after doctors gave him an overdose prescription of penicillin while being treated for pharyngitis. He says that the allergic reaction led to an eventual breakdown in his immune system, which now causes him to suffer from recurring cold-like symptoms, including a sore throat. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for residuals of pharyngitis and that the claim for service connection for residuals of an allergic reaction to penicillin is not well grounded. FINDINGS OF FACT 1. During service, the veteran experienced an allergic reaction to penicillin that had been prescribed for treatment of pharyngitis; he has not had an allergic reaction since the incident in service. 2. He has no chronic residuals stemming from the pharyngitis itself, or from the treatment that he received for the pharyngitis, including the allergic reaction that he had; any current manifestations of pharyngitis are not related to service or to any incident thereof. CONCLUSIONS OF LAW 1. Chronic residuals of pharyngitis were neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The veteran has not submitted evidence of a well-grounded claim for service connection for residuals of an allergic reaction to penicillin. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.380. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran had two periods of active service (1959-1962 and 1964-1968). During his first period of service, in April 1960, he was seen in the base dispensary for treatment of subacute pharyngitis, a severe common cold, and to rule out Influenza. He was prescribed penicillin (which he said he was not allergic to) and other medication. A few days later, he had an allergic reaction to the penicillin, which was manifested by itching, edema, hives and eczematous skin rash, nausea, and generalized malaises, so he was hospitalized for two days. When discharged, his condition was described as asymptomatic, and the skin rash and hives had almost disappeared. He was returned to full duty. When examined in November 1960, he had no complaints of pharyngitis or residuals stemming from his allergic reaction to penicillin. Records show that he had a history of sinus trouble that pre-dated service, but this problem was described as asymptomatic at that time. No pertinent defects were noted clinically during his June 1962 separation examination, although it was reported that he was allergic to penicillin. The service medical records from his second period of service, including the report of his August 1968 separation examination, are completely unremarkable, either by complaint or clinical finding, for residuals of pharyngitis or treatment for an allergic reaction to penicillin (his allergy to this drug was clearly noted in his records to prevent it being used as a means of treatment). In March 1979, February and November 1980, December 1983, December 1984, and March 1986, the veteran received treatment for pharyngitis at a private clinic (the record he submitted of this treatment does not show the name of the facility at which he was treated, nor does it identify the doctor who treated him). It shows, however, that medication was prescribed. In February 1987, the veteran was given a general medical examination at Cook and Dempsey, P.S.C. (family practice). His allergy to penicillin was noted. His cough was dry, irritative, and nonproductive. He had no known allergen history, and on physical examination, there were no abnormalities of his neck or head. In the diagnostic assessment, the doctor noted that the veteran's cough was probably an allergy-mediated event. In April 1989, the veteran filed an application for VA compensation benefits. In his application, he indicated that he had had an allergic reaction to penicillin while in service as a result of an overdose of the drug. As support for his claim, he submitted copies of his service medical records and records concerning treatment that he received after service. The veteran was examined by VA in June and July 1989. His primary complaints pertained to a rash on his left leg and foot. He told the examiner that he was given penicillin during service for some type of infection, after which he developed hives and swelling of his face. He said that that was an isolated incident, that he had not had a recurrence, and that he had not taken Penicillin since service. His head, face, and neck were normal on clinical evaluation, as were his nose, sinuses, mouth, and throat. He had a history of a dry cough. A record from Eastgate Family Physicians shows that the veteran received treatment at that facility for pharyngitis in November 1992. On file are three lay statements that were submitted as evidence in support of the veteran's claim. All are dated in December 1992. In one statement, an acquaintance of the veteran reports that he has known him since February 1988, that he has contact (personal and by telephone) with the veteran several times a week, and that the veteran always seems to have some type of pulmonary problem with heavy congestion. He said the veteran had missed several days from work because of this problem and that he also had a problem with a sore throat and hoarseness. He indicated that the veteran had been receiving treatment at a VA allergy clinic and that he was taking medication. The other two statements submitted also report frequent contact with the veteran and that he frequently experiences cold-like symptoms, such as sore throat and allergies. II. Legal Analysis The veteran's claim for service connection for residuals of pharyngitis is well grounded (i.e., not inherently implausible) within the meaning of 38 U.S.C.A. § 5107(a). All relevant facts concerning this claim have been properly developed and, therefore, VA's duty to assist him in developing evidence pertinent to this claim has been satisfied. Id. However, for reasons discussed below, his claim for service connection for residuals of an allergic reaction to penicillin is not well grounded; therefore, VA is not legally obliged to assist him in the development of evidence pertinent to this claim and, as a matter of law, it must be dismissed. Id. Service connection may be granted for disability resulting from a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A showing of continuity of symptomatology after service is required to support a claim when there is no proof of chronicity of disease or injury in service. 38 C.F.R. § 3.303(b). The treatment that the veteran received for pharyngitis during service in 1960 was complicated by an allergic reaction that he had to the drug penicillin. However, the symptoms that were caused by his allergic reaction resolved with treatment shortly after he was hospitalized in service, and he was returned to full duty within a couple of days time. He was not prescribed penicillin for the remainder of his time in service, and his allergy to this drug was clearly noted in his service medical records to prevent another administration of this antibiotic as a means of treatment. When examined by VA in 1989, many years after service, he reported that he had not experienced an allergic reaction to penicillin since service and that the incident that occurred in service was an isolated one. Therefore, as there is no evidence of current disability resulting from the allergic reaction in service, a prerequisite to a well-grounded claim, the claim for service connection for residuals of an allergic reaction to penicillin is not well grounded and must be dismissed. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). It should be noted, parenthetically, that seasonal and other acute allergic manifestations subsiding on the absence or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. 38 C.F.R. § 3.380. The veteran (as a layman) does not have the expertise or training to comment on a medical matter such as this. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). After the veteran was treated for pharyngitis in service, he had no further complaints concerning this condition, or residuals therefrom, for the remainder of his time spent on active duty, including after he re-entered service. He was treated for this condition in 1979, some 19 years after his service ended; but, this is a significant lapse between his initial episode of treatment in service and that which he received many years after service. In this respect, it is probative evidence against a finding of continuity of symptomatology because he does not have a reasonable basis for showing that the pharyngitis that was diagnosed in service is somehow etiologically related to that which was manifested many years later. See Mense v. Derwinski, 1 Vet.App. 354 (1991). The statements submitted by acquaintances of the veteran, concerning symptoms that they have noticed him to frequently suffer from, were all proffered many years after his service ended. In fact, none of these individuals knew him prior to 1988, and although each is competent to testify regarding things (such as the veteran's general state of health) that they have personally observed, none has the medical expertise or training to causally link his current symptoms to the condition diagnosed in service. See Espiritu, cited above. As a result, this evidence does little to show continuity of symptomatology after service, which is the dispositive concern in this case. As continuity of symptomatology after service has not been shown, the one-time incident of treatment for pharyngitis in service must be considered as acute and transitory. This disease completely healed prior to the end of the veteran's first period of service. Therefore, chronicity of disease or injury in service has not been established. The preponderance of the evidence is against the claim for service connection for residuals of pharyngitis. Hence, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for residuals of pharyngitis is denied. The claim for service connection for residuals of an allergic reaction to penicillin is dismissed as not well-grounded. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.