Citation Nr: 22018435 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-58 845 DATE: March 29, 2022 ORDER A rating higher than 10 percent for left Achilles tendonitis is denied. From January 5, 2018, a separate 10 percent rating for left ankle instability is granted. Prior to November 1, 2021, a 10 percent rating for allergic rhinitis is granted. From November 1, 2021, a rating higher than 10 percent for allergic rhinitis is denied. FINDINGS OF FACT 1. The Veteran's left Achilles tendonitis is manifested by no more than moderate limited motion of the ankle, including 30 degrees of plantar flexion and 10 degrees of dorsiflexion. 2. From January 5, 2018, the Veteran's left Achilles tendonitis was manifested by moderate ankle instability. 3. Prior to November 1, 2021, the Veteran's allergic rhinitis was controlled using medication. 4. Throughout the appeal period, allergic rhinitis did not result in polyps. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. From January 5, 2018, the criteria for a separate 10 percent rating for left ankle instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.71a, DC 5284. 3. Prior to November 1, 2021, 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. 4. From November 1, 2021, the criteria for a rating higher than 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1993 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision. It was previously remanded for additional development in July 2021. As part of her claim for an increased rating for allergic rhinitis, the Veteran referenced sinus-related symptoms, and there is a diagnosis of sinusitis in the evidence of record. However, it is not clear whether this sinusitis is associated with the service-connected rhinitis. The Veteran is encouraged to file a claim for service connection for sinusitis, to include as secondary to allergic rhinitis, if she so chooses. However, sinusitis will not be discussed in the context of her claim for an increased rating for rhinitis. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Left Achilles tendonitis The Veteran's left Achilles tendonitis is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Previously, under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." "Marked" means "having a distinctive or emphasized character." Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.). A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran.] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use, and therefore not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Veteran underwent a VA examination in September 2013. Range of motion testing showed plantar flexion of 35 degrees and dorsiflexion of 15 degrees, with the onset of pain at 35 and 15 degrees, respectively. These findings were unchanged with repetitive testing. An additional VA examination in November 2021 documented identical findings, and further noted that plantar flexion was 30 degrees and dorsiflexion was 10 degrees with repetitive use over time. The Veteran denied the presence of flare-ups during both examinations. The Board finds that the evidence of record persuasively weighs against a rating higher than 10 percent under both the old and new rating criteria. At worst, plantar flexion was 30 degrees and dorsiflexion was 10 degrees, which falls squarely within the 10 percent rating under the new criteria. This also equates to a "moderate" level of limited motion. Normal range of motion of the ankle is 45 degrees of plantar flexion and 20 degrees of dorsiflexion. See 38 C.F.R. § 4.71a, Plate II. The Veteran's range of motion equates to about half of normal, which is consistent with the definition of "moderate." The Board acknowledges the Veteran's lay reports of symptoms, including her August 2016 RO hearing testimony that she experienced flare-ups. However, she denied flare-ups during examinations before and after August 2016. VA's duty to assist, including providing examinations addressing flare-ups, has been satisfied. For these reasons, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating higher than 10 percent for left Achilles tendonitis. As the evidence of record persuasively weighs against a higher rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Separate rating for left ankle instability In addition to the limitation of motion, the evidence also shows the Veteran experiences left ankle instability. VA treatment records from January 2018 show that she described having instability in the ankle since January 5, 2018, including the ankle "giving out" while walking. The rating schedule does not specifically address ankle instability. However, DC 5284 addresses "other" foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." "Severe" means "of a great degree." The Board finds that a 10 percent rating is warranted to address the Veteran's ankle instability. A higher 20 percent rating, however, is not appropriate. There are no further entries relating to the instability, and the November 2021 VA examination specifically noted no objective findings of instability. Therefore, the Veteran's instability is not "moderately severe" and does not warrant the higher rating. Allergic rhinitis The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, DC 6522. Prior to November 1, 2021, she has a 0 percent rating. From that date, she is assigned a 10 percent rating. That code provides for a 10 percent rating when there is greater than 50 percent obstruction of both nasal passages, or when there is complete obstruction of one side. A maximum 30 percent rating is assigned with the presence of polyps. In every instance where the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent rating will be assigned when the requirements for the compensable evaluation are not met. 38 C.F.R. § 4.31 . The Veteran underwent a VA examination in September 2013. The examiner noted that she did not have greater than 50 percent obstruction of both nasal passages, and she did not have complete obstruction of one nasal passage. However, the Veteran testified, and her VA treatment records confirm, that she regularly treated her condition with medications and nasal sprays. When assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In this case, because DC 6522 does not consider the effects of medication, the Board will resolve any doubts in the Veteran's favor and find that she meets the criteria for a 10 percent rating when the effects of her medications are not considered. A higher 30 percent rating, either before or after November 1, 2021, is not warranted because both the September 2013 and November 2021 VA examinations found no polyps were present. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.