Citation Nr: 1758099 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-11 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to an initial evaluation higher than 70 percent disabling for posttraumatic stress disorder (PTSD) with depression. 3. Entitlement to a compensable rating for maxillary sinus disease with bilateral maxillary sinus retention cyst to include the propriety of the reduction from 50 percent to 0 percent, effective March 1, 2016. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1967 to March 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. A copy of the transcript is of record. This case was remanded for further development in December 2016. At that time, the Board also remanded the issue of entitlement to service connection for a heart disability. In June 2017, however, service connection for supraventricular tachycardia (claimed as paroxysmal atrial tachycardia, and heart problems) was granted. As the benefit sought on appeal has been granted, the Board no longer has jurisdiction over this issue. FINDINGS OF FACT 1. A lumbar spine disability was not manifest in service, arthritis was not compensably disabling within a year of separation from active duty, and it is not otherwise attributable to service. 2. The Veteran's PTSD has not been manifested by total occupational and social impairment. 3. The AOJ's decision to reduce the Veteran's service-connected maxillary sinus disease with bilateral maxillary sinus retention cyst from 50 percent to 0 percent, effective March 1, 2016, was not proper as the AOJ failed to consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. 4. The Veteran's maxillary sinus disease with bilateral maxillary sinus retention cyst is assigned a 50 percent rating, which is the maximum schedular rating available for the disability. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for an initial evaluation higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 3. As the AOJ's reduction of the disability rating for the service-connected maxillary sinus disease with bilateral maxillary sinus retention cyst from 50 percent to 0 percent disabling, effective March 1, 2016, was not in accordance with law, the criteria for restoration of the 50 percent rating are met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.105(e), 3.159, 4.3, 4.7, 4.97, DCs 6599-6513 (2017). 4. The criteria for a rating higher than 50 percent for maxillary sinus disease with bilateral maxillary sinus retention cyst have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.97, DCs 6599-6513 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). SERVICE CONNECTION The Veteran appeals the denial of service connection for a lumbar spine disability. He argues his back problems started during basic training when he jumped off a helicopter. He attributed his current back problems to his duties in service to include truck driving and helicopter jumps. He claims he self-treated his symptoms as he was in a combat environment. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). Certain chronic diseases, such as arthritis, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." Id. Section 1154(b)'s presumption may be rebutted only by clear and convincing evidence. Id. The Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption found in section 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Federal Circuit explained that with the presumption, the Veteran did not have to attempt to establish that the event during service led to a disability following service but instead only had to show that the disability incurred in service was a chronic condition that persisted in the years following active duty. Id. at 999-1000. After review of the record, the Board finds against the claim for service connection for a lumbar spine disability. Initially, the Board notes that the May 1967 enlistment examination showed a history of back pain four years ago which was "ok now." Examination of the spine, other musculoskeletal, revealed normal findings during the enlistment examination. Although the Veteran reported a prior back injury at enlistment, the mere report of history without more is insufficient to establish that he had a lumbar spine disability that preexisted service. The Board finds, therefore, that the presumption of soundness attaches and has not been rebutted by the Veteran's report of history. As such, the Veteran is presumed sound upon entry into service. 38 U.S.C. § 1111. Service treatment records show that the Veteran was seen in service for a strained back. Complications of a strained back were noted in early August 1968. Muscle strain was assessed at that time. The Veteran was seen again in late August 1968 for persistent back pain. Mild back strain was assessed. X rays of the lumbar spine were negative at that time. The February 1971 separation examination disclosed normal findings for the spine, other musculoskeletal. At that time, the Veteran denied a having back trouble of any kind. Arthritis is also not clinically shown to have been compensably disabling within a year from separation from active service. Thus, credible competent evidence includes the Veteran's own report that he had no back trouble at the time of service separation, and a medical evaluation finding a normal spine on physical examination. The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. These records do not include any competent opinion linking the Veteran's current lumbar spine disability to service or any incident therein. There is no competent evidence or opinion that the Veteran's disability is related to his military service and neither the Veteran nor his representative has presented any such opinion. Rather, a January 2012 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was one medical record note in the service treatment records for a lumbar strain but that the separation examination revealed no mention of a chronic lumbar spine condition. The VA examiner found that the acute lumbar strain appeared to have resolved without any chronic disabling condition at exit from the military and that the more recent notes on lumbar spine degenerative disc disease were in 2008. In February 2017, based upon review of the record, another VA examiner opined that it was less likely than not (less than 50 percent) that the Veteran's current lumbar disability was attributable to service or any incident in service to include his truck driving duties, reports of helicopter jumps and report of self-treatment in a combat zone environment wherein he lacked access to formalized care. The VA examiner stated that when considering the Veteran's history and contentions and lay evidence, one must consider the totality of the Veteran's history and contentions and the lay evidence. The VBMS records document multiple medical visits since1968 through 2010 in which there are no complaints or objective signs of a chronic back condition. If in fact the Veteran's current back condition had its origin or was related to back strain injuries in service it was medically reasonable to expect that signs and symptoms would manifest more temporally related to service and would have resulted in the Veteran seeking formalized care sooner than 42 years post-injury. She said that the record documents formalized medical care beginning in 1999 without any complaints of a back condition until 2010. The VA examiner further found that it was indisputable that the Veteran has significant disability related to his lumbar back condition diagnosed in 2010, but the evidence supports that it is less likely than not related to or incurred in service. His lumbar condition is very commonly seen in persons of his age and absent any other trauma not noted in the record is at least as likely as not as a result of the cumulative process of aging compounded by the wear and tear on his back while working for many years as a refrigeration mechanic for 20 plus years. The Board finds that the medical opinions rendered by the VA examiners are persuasive and assigns them greater probative weight than the lay statements of record. The opinions of the VA examiners were rendered by medical professionals with the expertise to opine on the matters at issue in this case. The examiners addressed the appellant's contentions and based the opinions on a review of the claims folder to include consideration of the in service history and the nature of the current disability. The opinions are consistent with the historical record to include the Veteran's denial of back trouble upon separation and the normal findings at separation by a military examiner. The Board finds no factual inaccuracies. Rather, the examiner's considered the Veteran's description of in service military duties and undocumented self-treatment for episodes of back pain as instructed by the Board. This accepted history was reviewed in the entirety of the record, to include the lay and medical evidence suggesting a normal lumbar spine at separation and lengthy post-service treatment record. For the reasons detailed above, the Board must find against the Veteran's claim for service connection. In making this decision, the Board notes that the Veteran is competent to report lumbar spine pain and the circumstances surrounding such. The Board instructed the VA examiner to accept the Veteran's description of in service duties and his report of self-treatment in a combat zone. Although lay persons are competent to provide opinions on observable lay symptoms or conditions, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issues in this case, the etiology of his lumbar spine disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the opinions of the VA examiners are far more probative and persuasive as to the etiology of the Veteran's disability. To the extent that the Veteran alleges that his back problems started in service and have continued since that time, the Board finds that this recollection is not credible. In this respect, his recent statements conflict with the separation examination in February 1971. During this examination, the Veteran specifically denied having back trouble of any kind and clinical examination by a military physician found normal findings for the spine at that time. The Board places greater probative weight to the Veteran's denial of back trouble at separation as these statements were made closer in time to the time period in question and bear the indicia of reliability as they were made in the context of seeking appropriate medical evaluation during service. See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's current allegation of chronic back problems since service was recollected many decades after service and is not consistent with his prior statements. Thus, an award of benefits based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted. Furthermore, there is insufficient evidence to reflect manifestations of arthritis to a compensable degree within one year of service discharge. See 38 C.F.R. §§ 3.307, 3.309. The Board has also considered the provisions of 38 U.S.C. § 1154(b). The Board has conceded the Veteran's self-treatment for back pain in the combat zone, and the reported rigors of military duty. However, the Board has found that the credible lay and medical evidence at the time of separation, which is after combat duty, shows that the Veteran did not have a chronic lumbar spine disability at service separation. In sum, the most probative evidence of record preponderates against finding that the Veteran's lumbar spine disability is related to service. While the service treatment records show complaints of back pain, such appears to be acute and a chronic disability resulting therefrom is not shown by the record. Accordingly, the claim is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. RATINGS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran appeals the denial of a rating higher than 70 percent for PTSD. His disability is evaluated pursuant to 38 C.F.R. § 4.130, DC 9411, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The General Rating Formula provides a 70 percent rating for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is indicated where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In assessing the evidence of record, it is important to note that the global assessment of functioning score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). A score of 31 to 40 is assigned where there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A score of 51-60 is assigned where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are some mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. After review of the record, the Board finds against the claim as the evidence to include VA examinations, outpatient treatment notes and private treatment records, does not justify an evaluation higher than 70 percent disabling for the Veteran's service-connected PTSD for any time during the appeal period. The most probative evidence establishes that while there clearly is occupational and social impairment, total occupational and social impairment has not been shown or more nearly approximated as contemplated by the schedular criteria. To that end, the evidence shows that the Veteran is twice divorced and has three children (one passed away). The Veteran reports that he is socially isolated and that he does not get along with family. He reported in October 2014, however, that he has had on-and-off relationships over the last 26 years but prefers to be alone. In August 2013 Social Security Administration records, it was noted that he attended weekly PTSD meetings, and that he went out of the house once or twice a week and that he shopped in the stores. While the Veteran reported in March 2011 that he does not have contact with any of his children, in a December 2011 statement the Veteran's son (after discussing the difficulties in his relationship with his father over the years) stated that he had been talking to the Veteran for the last year. Furthermore, the Veteran reported during the March 2011 VA examination that he did not have a girlfriend, he did not date and that he was socially isolated. In a statement from D.H. dated in January 2011, however, she expressed that she had been dating the Veteran for over 20 years and she indicated that they did go out in public together. Although the Veteran's reports no contact with his family and no dating life, the above evidence demonstrates that he can maintain some effective relationships and that he does not have total social impairment. With regard to occupational impairment, the Board acknowledges that the Veteran's PTSD causes some occupational impairment. During the March 2011 VA examination it was noted that the Veteran last worked four years previous and his PTSD issues of anger and irritability made it difficult to get along with his bosses, supervisors and coworkers. The March 2011 VA examiner found that the Veteran's PTSD symptoms clearly interfered with his ability to work and function in interpersonal relationships and opined that the Veteran exhibited "significant social cognitive and emotional relationship, occupational, behavioral, development impairment in all areas of his life." In a May 2011 psychiatric impairment questionnaire, the examiner provided diagnoses of PTSD, alcohol dependence in remission and cognitive disorder not otherwise specified (NOS) that rendered him markedly limited - effectively precluding him from performing normal workday activities in a meaningful manner. The October 2014 VA examination further disclosed that the Veteran had difficulty in adapting to stressful circumstances, including work or a work like setting. While the evidence shows that the Veteran's PTSD causes occupational impairment, the most probative evidence is against a finding that the Veteran meets, or more closely approximates, the criteria for total occupational and social impairment. It is noted that the criteria for a 100 percent disability rating under Diagnostic Code 9411 require both total occupational and social impairment; the criteria are conjunctive, not disjunctive; thus, both criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As such, the evidence is against a finding that there is total occupational and social impairment. In making this decision, the Board notes objective findings have consistently shown that the Veteran has goal directed thought processes, normal judgment and orientation. His appearance generally has also been appropriate and thought content normal. There is no showing of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) and/or any other symptoms of similar equivalence required for a total rating. Furthermore, although an examiner's classification of the level of a psychiatric impairment, by words or by a global assessment of functioning score, is to be considered but is not determinative of the percentage disability rating to be assigned (38 C.F.R. § 4.126), it is notable that for the period considered in this appeal the Veteran's global assessment of functioning score range from 48 to 55 which is indicative of moderate to serious symptoms. This represents some residual occupational and social functioning which is less than "total." In the view of the Board, the global assessments of functioning scores are consistent with symptoms due to PTSD and the assignment of no more than a 70 percent rating. Although the Veteran symptoms include anger, irritability, depression, flashbacks, some suicidal ideation, mood swings, social isolation, difficulty with memory and concentration, problems with focusing his attention, sleep disturbance, flashbacks, and strong startle response, such symptoms do not warrant a 100 percent evaluation when the frequency, duration and severity of these symptoms are evaluated with all the other manifestations. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Stated differently, the medical and lay evidence establish that there is occupational and social impairment with deficiencies in most areas. The manifestations, however, even when accepted as credible, do not equate in frequency, duration, or severity to total occupational and social impairment. Neither the lay or credible medical evidence shows the Veteran's symptoms have been persistent or rises to the level required for a 100 percent evaluation during the applicable period of time. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. Sinus In a June 2013 rating decision, the Veteran was granted service connection for maxillary sinus disease with bilateral maxillary sinus retention cyst evaluated as 50 percent disabling, effective February 10, 2011. In September 2014, the AOJ informed the Veteran of its proposal to reduce his disability rating from 50 to 0 percent. In a December 2015 rating decision, the Veteran's service-connected maxillary sinus disease with bilateral maxillary sinus retention cyst was reduced from 50 to 0 percent disabling, effective March 1, 2016. The Veteran appeals the reduction in his rating. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires in any rating reduction case VA to determine (1) based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (citing Brown, 5 Vet. App. at 421). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Upon review of the evidence, the Board finds that the reduction in the rating from 50 percent to 0 percent for the Veteran's service connected maxillary sinus disease with bilateral maxillary sinus retention cyst under DC 6599-6513 was not proper, and restoration of the 50 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed the evidence of record, which indicated that the Veteran's service-connected maxillary sinus disease with bilateral maxillary sinus retention cyst no longer met the criteria for a 50 percent rating under DC 6513. However, review of the September 2014 and December 2015 rating decisions, the June 2016 Statement of the Case, and the June 2017 Supplemental Statement of the Case, all reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. The AOJ's failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Here, the AOJ failed to consider whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. Accordingly, the 50 percent rating assigned for maxillary sinus disease with bilateral maxillary sinus retention cyst under DCs 6599-6513 is restored. In making this decision, the Board will next address whether a rating higher than 50 percent disabling is warranted for the Veteran's maxillary sinus disease with bilateral maxillary sinus retention cyst. The Veteran's disability is rated under DCs 6599-6513. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27. DC 6599 represents an unlisted disability requiring rating by analogy to one of the disorders rated under the code. DC 6513 evaluates chronic maxillary sinusitis. DCs 6510 through 6514 pertain to various types of sinusitis, each of which is rated based on the criteria in a General Rating Formula for Sinusitis (General Formula). Under the General Formula, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis; or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Veteran's maxillary sinus disease with bilateral maxillary sinus retention cyst is rated as 50 percent disabling which is the maximum rating available under DC 6513. The Board recognizes the Veteran's assertion that his disability warrants a higher evaluation; however, 50 percent is the maximum rating available for his maxillary sinus disease with bilateral maxillary sinus retention cyst pursuant to DC 6513. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms, but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 50 percent disabling for maxillary sinus disease with bilateral maxillary sinus retention cyst. Moreover, the Veteran has not reported other symptoms not contemplated by these rating criteria. Accordingly, the claim for a rating higher than 50 percent disabling is denied. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to an initial evaluation higher than 70 percent for PTSD with depression is denied. As the reduction in the disability rating from 50 percent to 0 percent for the Veteran's service connected maxillary sinus disease with bilateral maxillary sinus retention cyst was not proper, restoration of the 50 percent rating is granted. Entitlement to an initial rating higher than 50 percent for maxillary sinus disease with bilateral maxillary sinus retention cyst is denied. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs