Citation Nr: 21014898 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-19 672 DATE: March 16, 2021 ORDER A compensable rating for non-allergic rhinitis is denied. Service connection for a right ankle disability is granted. Service connection for a left ankle disability is granted. FINDINGS OF FACT 1. The service-connected non-allergic rhinitis is manifested by persistent nasal congestion; obstruction of the nasal passages has not been demonstrated. 2. With resolution of the doubt in his favor, the Veteran has a right ankle disability that had onset due to injury sustained during a period of service. 3. With resolution of the doubt in his favor, the Veteran has a left ankle disability that had onset due to injury sustained during a period of service. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating for the service-connected non-allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97 including Diagnostic Code (DC) 6522. 2. The criteria for entitlement to service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for entitlement to service connection for a left ankle disability have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to November 1971; December 1990 to May 1991; November 2001 to November 2002; February 2005 to June 2006; July 2006 to May 2007; June 2007 to August 2008 and February 2010 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the RO. The Veteran testified at a Board video-conference hearing in December 2018 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. In November 2019, the Board remanded the issues on appeal for further development of the record. Specifically, the Board instructed the RO to schedule the Veteran for VA examinations to evaluate the severity of the service-connected non-allergic rhinitis and nature and etiology of the claimed right and left ankle disabilities. The Veteran underwent examinations in January 2020. The requested development has been completed and the case is returned to the Board for appellate disposition. The appeal originally included the issues of entitlement to service connection for sleep apnea, chronic fatigue syndrome, a respiratory condition and a gastrointestinal condition. In April 2020, the RO granted service connection for sleep apnea with shortness of breath of unknown etiology and gastroesophageal reflux disease (GERD) and assigned 30 percent and noncompensable ratings, respectively, effective January 6, 2011. In July 2020, the RO granted service connection for chronic fatigue syndrome and assigned a 40 percent rating effective January 6, 2011. Thus, the claims for service connection for sleep apnea, a respiratory condition, a gastrointestinal condition and chronic fatigue syndrome have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). 1. Entitlement to a compensable rating for non-allergic rhinitis Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The rating for the Veteran’s non-allergic rhinitis have been assigned pursuant to Diagnostic Code 6522. See 38 C.F.R. § 4.97. A 10 percent evaluation is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is assigned for allergic rhinitis with polyps, which is the maximum schedular rating allowed by law. Id. The May 2013 Report of VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx reflects the Veteran’s report that he has experienced chronic rhinitis since approximately 2006. He reported that he used antihistamines to treat his rhinitis with partial relief of his symptoms. Objectively, he had no: obstruction of the nasal passages; permanent hypertrophy of the nasal turbinates; nasal polyps; or, a granulomatous condition. The Veteran’s non-allergic rhinitis does not impact his ability to work. The examiner remarked that the Veteran’s rhinitis is aggravating but not functionally impairing. An October 2016 VA Ear, Nose and Throat (ENT) treatment record reflects that the Veteran was being scheduled for a balloon sinuplasty, septoplasty, turbinate reduction. A December 2016 VA pulmonary note reflects that the Veteran’s breathing was much better since he had sinuplasty. The January 2020 Report of VA sinusitis, rhinitis and other conditions of the nose, throat, larynx and pharynx reflects the Veteran’s complaint that he experienced persistent nasal congestion, similar to a sensation of a nasal obstruction. He underwent balloon sinuplasty, septoplasty and turbinate reduction in 2016 which provided no relief. He reported that his symptoms have persisted. Objectively, he had no obstruction of the nasal passages; permanent hypertrophy of the nasal turbinates; nasal polyps; or, a granulomatous condition. The Veteran’s non-allergic rhinitis does not impact his ability to work. Without demonstration that the Veteran has obstruction of the nasal passages, the service-connected non-allergic rhinitis does not meet the criteria for assignment of a compensable rating. Assignment of a compensable rating for the service-connected non-allergic rhinitis must be denied. Additionally, the Veteran is not shown to have any granulomatous conditions. Thus, a compensable rating is not warranted under any other diagnostic criteria contemplating rhinitis. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to service connection for a right ankle disability and a left ankle disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Service treatment records contain no documentation of complaints of or treatment for a right or left ankle disability. The Veteran contends that he has right and left ankle disabilities that onset due to injury sustained during his period of service or secondary to a service-connected disability. The Veteran submitted a private treatment statement in January 2019 that reflects the treating examiner’s opinion that the Veteran’s ankle condition is at least as likely as not related to his period of service/injury incurred in service or secondary to a service-connected disability. The examiner explained there was a 50/50 probability that the right and left ankle disabilities were more likely due to or secondary to neuropathy and uncontrolled diabetes. The January 2020 Report of VA ankle conditions examination documents diagnoses of right and left ankle tendonitis. The Veteran reported his bilateral ankle pain onset in 2005 during physical fitness training and patrol assignments at Fort Hood. He reported that the bilateral ankle pain worsened in 2007 during training for deployment to Iraq. He described having intermittent bilateral ankle pain that had progressively worsened over the years. He complained of constant, stabbing pain in both ankles, worse with weight bearing activities such as prolonged standing or walking or climbing stairs. He reported that the ankle pain made it difficult to sleep at night. The examiner opined that the right and left ankle tendonitis were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there were no service treatment records noting complaints, treatment or diagnosis of right or left ankle conditions. In an April 2020 VA examination addendum, the examiner found that the right and left ankle disabilities were less likely than not secondary to service-connected bilateral lower extremity peripheral neuropathy and/or diabetes. The examiner explained that the Veteran reported onset of his bilateral ankle pain in 2005 during physical fitness training and patrol duty while stationed at Fort Hood. In addition, the examiner explained that the Veteran reported the pain worsened in 2007 during training for deployment to Iraq. The Veteran clearly has current right and left ankle disabilities (ankle tendonitis) and the question for resolution is whether they may be linked to any incident of active service. Given the Veteran’s report of onset of bilateral ankle pain during a period of service in 2005, in consideration of the deficiencies of the January 2020 VA examination opinion and rationale and April 2020 VA examination addendum opinion, the evidence is in relative equipoise in showing that the Veteran’s current right and left ankle disabilities (ankle tendonitis) had their clinical onset due to injury sustained during a period of service. Reasonable doubt is resolved in the Veteran’s favor and service connection for a right and left ankle disabilities is warranted. The Board expresses no opinion regarding the severity of the disorders. The RO will assign appropriate disability ratings on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.