Citation Nr: 18154019 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-40 752 DATE: November 29, 2018 ORDER The evaluation for the Veteran’s status post septoplasty and functional endoscopic sinus surgery with chronic bilateral maxillary sinus was properly reduced from 50 percent to a non-compensable rate percent, effective March 1, 2014. REMANDED For the period beginning March 1, 2014, entitlement to a compensable rating for status post septoplasty and functional endoscopic sinus surgery with chronic bilateral maxillary sinus is remanded. FINDING OF FACT 1. The 50 percent rating for status post septoplasty and functional endoscopic sinus surgery with chronic bilateral maxillary sinus had been in effect for less than five years at the time of the December 2013 rating decision that reduced the rating to non-compensable rate. 2. The evidence at the time of the December 2013 rating decision implementing the rating reduction disclosed improvement in the disability and reduction was in accordance with all applicable laws and regulations. CONCLUSION OF LAW The reduction of the rating for status post septoplasty and functional endoscopic sinus surgery with chronic bilateral maxillary sinus from 50 percent to a non-compensable rate effective March 1, 2014, did not involve a due process violation, and was proper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, Diagnostic Code (DC) 6513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision. As concerns the reduction, the Board notes that this matter does not necessarily include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case, however, the rationale provided by the RO, during the appeal period, discussed the claim as one for increase. Specifically, in the June 2016 statement of the case, the RO indicated that a higher, compensable rating was not warranted unless there were symptoms of incapacitating episodes. Moreover, the Veteran repeatedly offered argument concerning the current severity of sinus condition. Accordingly, the Board has characterized the issues as including an increased rating claim, as stated on the title page. Reduction of Rating This matter stems from a September 2013 rating decision, which proposed to reduce the Veteran’s evaluation for his sinus condition from 50 percent to a non-compensable rate following the results of an August 2013 VA examination. In a December 2013 rating decision, the RO reduced the Veteran’s evaluation for his sinus condition to a non-compensable rate, effective March 1, 2014. The Veteran disagreed with the reduction and requested a higher evaluation. At the time of the December 2013 reduction, the 50 percent evaluation for the Veteran’s sinus condition had been in effect from October 1, 2011, to April 30, 2014. Thus, as the rating for the Veteran’s sinus condition had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Nevertheless, in any rating-reduction case, regardless of whether the evaluation has been in effect for five years or more, certain general regulations need to be considered. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; 38 C.F.R. § 3.344(c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement). A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). During the relevant appeal period, the Veteran’s sinus condition has been assigned a 50 percent rating, effective October 1, 2011, and a noncompensable rating, effective March 1, 2014, under 38 C.F.R. § 4.115b, DC 6513 for sinusitis, maxillary, chronic. Under the General Rating Formula for Sinusitis (diagnostic codes 6510 through 6514); a noncompensable rating is warranted for detection by X-ray only. A 10 percent rating 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 disability rating is warranted for 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 maximum 50 percent rating is warranted 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. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. In a Note, the General Rating Formula defines an incapacitating episode of sinusitis as one that requires bed rest and treatment by a physician. Id. In this case, the August 2013 VA examination showed that the Veteran’s sinus condition was status post septoplasty, with no evidence of maxillary sinusitis. The examination did not find any conditions of the nose, throat, larynx, or pharynx. A concurrent X-ray examination showed that the sinuses were normally developed and well-aerated. There was hypoplasia of the frontal sinuses which was a normal anatomic variation. There was no evidence of air-fluid level or mucosal thickening. There was no bone erosion identified. The mastoid air cells as visualized were normal. Additionally, there was no evidence presented that the Veteran’s sinus condition had become active any time after the August 2013 VA examination. Thus, under Diagnostic Code 6513, there was a legitimate basis for reducing the evaluation, effective from March 1, 2014. REASONS FOR REMAND In regard to his claim for an increased rating for his sinus condition, the Veteran has stated that his sinus condition has increased in severity. The Veteran last underwent a VA examination for the purpose of evaluating his sinus condition in August 2013, over 5 years ago. Therefore, a more contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). The matter is REMANDED for the following actions: 1. Associate with the record any pertinent VA clinical documentation not already of record. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his sinus condition. After securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. 3. Thereafter, schedule the Veteran for a VA medical examination by an appropriate examiner to determine the nature and severity of his service connected sinus disability. The claims file must be made available to the examiner for review in connection with the examination, and it should be confirmed that such records were available for review. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examination report must include a complete rationale for all opinions expressed. The examiner should address symptoms including the following: the frequency and duration of incapacitating episodes, the nature of any medications prescribed, discharge, crusting, headaches, pain, and tenderness. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his sinusitis. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel