Citation Nr: 18153537 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-32 011 DATE: November 28, 2018 ORDER The reduction from 50 percent to 10 percent for allergic rhinitis with sinus inflammation was not proper, and the 50 percent rating is restored from June 1, 2015. FINDING OF FACT The Veteran’s ability to function with allergic rhinitis with sinus inflammation did not improve as of June 1, 2015. CONCLUSION OF LAW The criteria for reduction of the rating for allergic rhinitis with sinus inflammation from 50 percent to 10 percent effective from June 1, 2015, have not been met; the reduction was not proper and the appeal is granted. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.3, 4.7 Diagnostic Code 6512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to July 2000. Reduction The Veteran contends that his allergic rhinitis with sinus inflammation was improperly reduced from 50 percent to 10 percent as of June 1, 2015. Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. 38 C.F.R. § 3.105 (e), (i). Here, the Veteran was notified in an August 2014 rating decision that VA was proposing to reduce the rating assigned for his allergic rhinitis with sinus inflammation. The notification letter advising him of this proposed reduction as well as his opportunities to send additional evidence or request a hearing was also sent in August 2014. Therefore, the due process requirements regarding the reduction were satisfied. As to the merits of the reduction, the 50 percent rating for allergic rhinitis with sinus inflammation was awarded effective January 2012. Therefore, it was effective for less than 5 years at the time it was reduced in March 2015. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344 (a) and (b) are not applicable. 38 C.F.R. § 3.344 (c). Instead, reduction in rating will be considered based on reexaminations disclosing improvement. Id. In any rating reduction, VA must determine that an improvement in a disability has actually occurred, and that it actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran’s allergic rhinitis with sinus inflammation is rated under diagnostic code (DC) 6512. Under DC 6512 a 10 percent evaluation is assigned where there are 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 assigned where 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 when there is near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Schedule defines an incapacitating episode as one that requires physician-prescribed bed rest and treatment by a physician. In this case, the Veteran underwent a VA examination in March 2015, where the examiner noted that his allergic rhinitis with sinus inflammation is manifested by headaches, pain and tenderness of the affected sinus, as well as purulent discharge and crusting. Similarly, a January 2015 Disability Benefits Questionnaire (DBQ) reflects that he has near constant sinusitis and 6 non-incapacitating episodes over in the 12 months preceding the exam. The record also contains a July 2014 examination that shows that the Veteran had constant sinus pressure.   In summary, the evidence shows that the Veteran continues to have constant sinusitis with headaches, pain, tenderness and purulent discharge and crusting, which are criteria for a 50 percent disability rating. Based on this evidence, the reduction in this case was not proper because the Veteran’s condition has not been shown to have improved and restoration of the 50 percent rating is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON