Citation Nr: 21041781 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-12 474 DATE: July 10, 2021 ORDER A 10 percent rating, but no higher, for allergic rhinitis is granted. Service connection for a right foot achilles tendon condition is denied. Service connection for a left foot achilles tendon condition is denied. REMANDED Service connection for a right knee disability is remanded. Service connection for a left hip disability is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether symptoms approximating greater than 50 percent obstruction of the nasal passage on both sides of his nose. 2. The preponderance of the evidence weighs against finding that the Veteran has an achilles condition that was incurred during service or is causally related to his service. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522. 2. The criteria for service connection for bilateral achilles conditions is denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1990 to March 1994. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. These issues of entitlement to service connection for a left hip and right knee disabilities, as well as entitlement to a compensable rating for allergic rhinitis were denied in a September 2019 Board decision. Service connection for OSA and bilateral achilles tendon conditions were remanded by the Board for further development. The Veteran appealed the denials in the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JPMR) and returned the issues of entitlement to service connection for a left hip and right knee disabilities, as well as entitlement to an increased rating for allergic rhinitis to the Board for action consistent with the JPMR. The September 2019 Board decision was partially vacated, and the claim remanded. In December 2020, the Board remanded these matters for the following: (1) a new VA examination regarding his right knee disability that considers a March 2016 statement by his treating physician; (2) an initial VA examination regarding his left hip disability; (3) an initial VA examination regarding OSA; and (4) an addendum VA examination regarding the severity of his rhinitis that does not consider ameliorative effects of medications. See December 2020 Board Remand. The above development has been completed however the Board again had to remand the increased rating for allergic rhinitis claim and the right knee, left hip and OSA service connection claims in an April 2021 decision for the issuance of an SSOC for initial consideration of new evidence. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. An increased rating for allergic rhinitis Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an initial increased evaluation for his service-connected rhinitis, which has been assigned a noncompensable evaluation under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522, since June 27, 2015. See March 2016 rating decision; see also July 2016 notice of disagreement. Under DC 6522, a 10 percent disability rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A maximum 30 percent disability rating is assigned for allergic rhinitis with polyps. 38 C.F.R. § 4.97. Factual Background & Analysis The Veteran was afforded a VA examination in January 2016. The examiner reviewed the claims file and conducted an in-person evaluation, noting the Veteran's diagnosis of allergic rhinitis. The Veteran stated that his sinus problems manifest while he sleeps and indicated that whatever side he sleeps on gets stopped up. To treat these symptoms, he uses over the counter medications. However, the examiner determined that the obstruction of both nasal passages was less than 50 percent. There were also no indications of permanent hypertrophy, nasal polyps, or granulomatous conditions. Lastly, the examination report does not reflect evidence scarring or obvious deformities. As such, the examiner concluded that the Veteran's service-connected rhinitis would not affect his ability to work. Private treatment records in the months following the VA examination generally show that the Veteran's rhinitis was stable despite occasional, acute exacerbations. In July 2016, the Veteran submitted a statement in support of his claim. He reported that he uses an over the counter nasal spray to treat his rhinitis, indicating that it will last for about four hours before he needs to do it again. If the Veteran does not use the spray, he will experience complete blockage on hot and humid days. Additionally, the Veteran claimed that when he sleeps at night, the side he slept on is always clogged the next morning. Lastly, he asserted that he sits in front of a fan at work, which causes complete blockage in both nostrils. Largely based on the findings of the January 2016 VA examiner, the Board denied a rating in excess of 0 percent for allergic rhinitis in September 2019. As noted, the Court's July 2020 JMPR found critical deficiencies with the January 2016 VA examination assessing the Veteran's allergic rhinitis. In particular, the Court found that the Veteran's allergic rhinitis should be assessed in the absence of the ameliorative effects of the medications taken to treat his disability. Therefore, this matter was remanded by the Board in December 2020 for a new VA examination. The Veteran was afforded another VA examination in December 2020 via approved video telehealth. The examiner reviewed the pertinent medical evidence and confirmed a diagnosis of allergic rhinitis. The Veteran denied 50 percent or greater obstruction of the nasal passage on both sides. There was permanent hypertrophy of the nasal turbinates noted with no nasal polyps present. There was no evidence of scars with reference of imaging studies with computed tomography (CT scan) dated July 28, 2017. The Veteran stated during the interview that his symptoms have been worsening and that he has been using allergy medication since separation from service and does not know how bad his symptoms would be if he were not taking medications. He stated that his symptoms occasionally get so severe that he cannot breathe through his nose at all and lately this has become a daily occurrence. When this occurs, he must use over-the-counter nasal spray so he can breathe through his nose. The examiner ultimately stated that he could not assess the severity of allergic rhinitis without the ameliorative effects of medication because the Veteran has been using various medications since service and has not been off medication since that time. Moreover, the Veteran's frequent excessive use of daily over-the-counter decongestant sprays containing oxymetazoline may be exacerbating his disability rather than ameliorating his symptoms. As stated, under DC 6522, a 10 percent disability rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran stated during his December 2020 telehealth examination that he experiences daily exacerbation of symptoms that cause him to be unable to breathe through his nose. Accordingly, and affording all reasonable doubt to the Veteran, the Board finds that the evidence is in relative equipoise as to whether the criteria for a 10 percent disability rating have been met under DC 6522 for symptoms approximating greater than 50 percent obstruction of the nasal passage on both sides of his nose. The Board is especially inclined to grant the Veteran the benefit of the doubt in this instance because the December 2020 examiner did not provide an estimate of how severe the Veteran's symptoms would be without the ameliorative effects of medication. Further, the Board additionally finds that a higher 30 percent disability rating is not warranted because neither the objective medical evidence or the lay evidence of record have documented or been suggestive of the presence of nasal polyps. 38 C.F.R. § 4.97; DC 6522. 2. Service connection for a bilateral achilles tendon condition Legal Criteria In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012), 38 C.F.R. § 3.303 (2020). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Factual Background & Analysis The Veteran originally claimed service connection for conditions of the right and left achilles tendons, alleging that these impairments are secondary to his bilateral pes planus. See July 2016 correspondence. The Board determined in a September 2019 decision that the Veteran's bilateral pes planus was not related to his service and denied service connection on a secondary basis. With regards to direct service connection, the Board remanded this matter for further evidentiary development noting that the evidence of record confirms that the Veteran sustained injuries to both achilles tendons that required surgical correction in the years following separation. A VA ankle examination was conducted in September 2020. The Veteran was diagnosed as being "status post achilles tendon repair" with his right achilles being repaired in 1997 and his left in 2011. The Veteran communicated that he tore his right achilles playing basketball in 1996 after separation from service and that he tore his left achilles playing football in 2011. The examiner ultimately opined that it is less likely than not that the Veteran's claimed disabilities were incurred or are causally related to his service. The examiner explained that the Veteran's injuries occurred post-service and that he has not received treatment for these disabilities since his surgeries. The examiner further noted that the Veteran does not have a current achilles tendon disability. The Veteran has not otherwise contended or submitted evidence tending to substantiate that he has an achilles condition that was incurred during service or is causally related to events during service. In sum, there is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has an achilles tendon disability that is causally related to his service. Because the preponderance of the evidence weighs against the claim it must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND 3. Service connection for a right knee disability 4. Service connection for a left hip disability 5. Service connection OSA In a recent June 2021 submission, the Veteran has raised the contention that his right knee, left hip and OSA disabilities are caused or aggravated by his obesity which has been aggravated by his service-connected PTSD. The Board observes that obesity is not considered a disease or disability for VA purposes and is not subject to service connection. See Marcelino v. Shulkin, 29 Vet. App. 155, 156 (2018). However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. 38 C.F.R. § 3.310; see also Walsh v. Wilkie, 32 Vet. App. 300 (2020). Given this new plausible theory of entitlement, the claims are remanded for new VA medical opinions to address whether obesity is an intermediate step between his service-connected PTSD and the above-claimed disabilities on appeal. The matters are REMANDED for the following action: 1. Associate any updated VA or private treatment records. 2. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is it at least as likely as not that (i) service-connected PTSD caused or aggravated the Veteran's obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of service-connected PTSD was a substantial factor in causing right knee, left hip or OSA disabilities; and whether these disabilities would not have occurred but for the obesity caused by service-connected PTSD or the obesity aggravated by service-connected PTSD. The Board appreciates the examiner's patience in addressing this multistep question. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.