Citation Nr: 20004882 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 19-12 887 DATE: January 22, 2020 ORDER The reduction in rating for service-connected allergic rhinitis from 10 percent to 0 percent (noncompensable) was improper; thus, restoration of the prior 10 percent rating is granted as of December 11, 2017, the date of the reduction. Entitlement to a rating in excess of 10 percent for the allergic rhinitis is denied. FINDINGS OF FACT 1. When the local regional office (RO) reduced the 10-percent evaluation assigned for the Veteran’s allergic rhinitis to the lesser noncompensable evaluation, the evidence did not support finding that there was actual improvement in this service-connected disability that would be maintained and allow him to function better under the ordinary conditions of life and work. 2. At no time during the pendency of the Veteran’s claim has his allergic rhinitis been manifested by nasal polyps.   CONCLUSIONS OF LAW 1. The criteria are met for restoration of the 10 percent rating for allergic rhinitis as of December 11, 2017, the date the rating was reduced. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6522. 2. The criteria for a rating in excess of 10 percent for the allergic rhinitis (claimed as a sinus condition) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.97, DC 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Propriety of the reduction in rating for the allergic rhinitis (claimed as a sinus condition) As a preliminary matter, the Board will first address the contention of the Veteran’s representative that VA failed in its procedural-due-process duty to provide the Veteran notice of the intended reduction in rating for this service-connected disability and did not give him adequate time to dispute the reduction by being heard on the matter – including during a pre-determination hearing. The Board does not find commission of any such contravention of the law, however. In a September 2015 rating decision, the RO granted service connection for allergic rhinitis and assigned an initial evaluation of 10 percent for this condition retroactively effective from June 24, 2014. In August 2017, the Veteran’s combined evaluation for his multiple service-connected disabilities was 60 percent. That same month, he filed several claims – including for a total disability rating based on individual unemployability (TDIU). As part of his claim for a TDIU, the RO had him undergo medical examinations, including in December 2017 for his allergic rhinitis.   In a June 2018 rating decision, the RO reduced the evaluation for the allergic rhinitis from 10 percent to noncompensable effective from December 11, 2017. The RO also, however, granted service connection for other disabilities in that same rating decision. And after adding those other disabilities and conversely reducing the evaluation for the allergic rhinitis, the Veteran’s combined evaluation was adjusted to 80 percent from August 4, 2017 to December 11, 2017, and to 70 percent thereafter. Therefore, his combined (overall) rating did not decrease, instead, increased; only the rating for his allergic rhinitis decreased. The Veteran’s representative contends that VA was required to comply with the notice requirements of 38 C.F.R. § 3.105. The Board finds that 38 C.F.R. § 3.105 is not applicable to the Veteran’s situation, however; therefore, VA was not required to provide notice to the Veteran prior to reducing his allergic rhinitis rating. The determining factor as to whether notice is required under 38 C.F.R. § 3.105 is whether the rating decision in question results in a reduction or discontinuance of compensation payments currently being made. The legislative history of 38 C.F.R. § 3.105 reflects that the purpose of the notification and grace period before actually reducing a rating for a service-connected disability is to allow sufficient time for adjustment to any problems associated with reduction or loss of benefits. In this Veteran’s situation, he did not have any economic detriment. The June 2018 rating decision resulted in a combined rating increase from 60 percent to 80 percent, albeit then a reduction to 70 percent, but even that 70 percent combined rating exceeded the initial 60 percent combined rating. Consequently, the actual amount of monthly compensation received by the Veteran at the time of the rating decision was not reduced as a result of the rating decision. Instead, as a result of the June 2018 rating decision, the Veteran now had a combined disability rating exceeding the disability rating he had prior to the June 2018 rating decision. Thus, the procedural/notification requirements of 38 C.F.R. § 3.105 are inapplicable. Neither 38 U.S.C. § 5112(b)(6) nor 38 C.F.R. § 3.105(e), regarding effective dates and notice required for reductions, apply in the context of the assignment of a staged rating by the Board where the Veteran’s disability rating is not reduced, for any period of time, to a level below what was in effect when the matter was appealed to the Board. The Board also notes that there has been no prejudice to the Veteran by a lack of prior notice because he has had the opportunity to submit additional evidence regarding the severity of his condition, which he did by submitting a notice of disagreement (NOD) and attending a May 2019 VA examination. The Board next addresses the substantive aspects of the claim. The Veteran’s 10 percent rating was in effect for less than five years (i.e., from June 24, 2014 to December 11, 2017). If a rating has been in effect for less than 5 years, 38 C.F.R. § 3.344(c) applies but subparagraphs (a) and (b) do not. That said, in all rating reduction cases, not only must it be determined that an improvement in the disability actually has occurred, but also that the 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). The Veteran’s allergic rhinitis, which was examined in August 2015, June 2016, December 2017, and May 2019, is rated under DC 6522. A 10 percent rating is warranted for allergic rhinitis without polyps but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The August 2015 Disability Benefits Questionnaire (DBQ) reflects that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to his allergic rhinitis. It was noted that he did not take continuous medication to control his condition. A September 2015 VA record reflects that the Veteran was seen for sinusitis and prescribed fluticasone to take every day, as needed. The June 2016 VA examination report reflects that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on either side. It was noted that he takes Claritin and fluticasone nasal spray, so over-the-counter medication. He also reported using a saline rinse approximately three times a week.   An October 2016 VA clinical record reflects that the Veteran reported that, every morning, he wakes up with mucus draining from his nose. He reported that the nasal spray “actually burns his nose”. (A subsequent October 2016 consultation note reflects that he was prescribed flunisolide instead of fluticasone because of intolerance). He further reported that his sinus has been acting up and that he had been sneezing a lot, on and off, for approximately three months. He was prescribed Zyrtec and NF flunisolide for his allergic rhinorrhea. The December 2017 DBQ reflects that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on either side. It was noted that he takes Claritin daily. A January 2018 VA clinical record reflects that the Veteran sought treatment for sinus congestion/drainage. Clinical records also note that he has reported a recent sinus infection (February 2019), and he has reported post-nasal drip and a sinus headache (April 2019). The May 2019 DBQ reflects that the Veteran’s current treatment is azelastine nasal spray, cetirizine, montelukast, and triamcinolone nasal inhalation. He did not have greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on either side. He did have at least 50 percent blockage in the left nare. The Board realizes the Veteran no longer had greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on either side owing to his allergic rhinitis according to the reports of his examinations in 2016, 2017, and 2019. However, and as importantly, during those examinations he reported consistent use of medication to treat this condition, whereas in 2015 it was conversely noted that he did not take continuous medication for treatment. When assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In the present case, the ameliorative effects of medication are not explicitly contemplated by the rating criteria of DC 6522. The record as a whole does not reflect that the Veteran’s seeming improvement (lack of at least 50 percent blockage in both nasal passages or complete blockage on either side) is not due to the use of medications to lessen the effects of his allergic rhinitis or that, if he stopped taking the medications, he still would not have the required level of obstruction of his nasal passages. Thus, the Board finds that it has not been shown by a preponderance of the evidence that improvement in the disability actually has occurred and that the noted improvement (unblockage of right nare) represents an improvement in his ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993). For these reasons and bases, restoration of the prior 10 percent rating is warranted as of the date this rating was reduced. 2. Entitlement to a rating in excess of 10 percent for the allergic rhinitis As already explained, under DC 6522, a 10 percent disability is warranted when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. In determining whether a higher rating is warranted for this service-connected disability, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Disability evaluations 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 (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified in the Rating Schedule is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria 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. As already mentioned, in August 2017 the Veteran filed several claims, including for a TDIU. As part of his claim for a TDIU, the RO had him undergo a battery of VA compensation examinations to assess the functional impact of his several service-connected disabilities, including in December 2017 for his allergic rhinitis. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. But where service connection already has been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, “staged” ratings must be assigned to compensate him for this variance – irrespective of whether an established or initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).   The evaluation of the same disability under various diagnoses, however, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board is mindful of the Veteran’s reported complaints; however, he has not been shown to be competent to diagnose nasal polyps, and there is no competent and credible (therefore no probative) evidence of record showing he has polyps. Even if he was able, as a layman, to diagnose nasal polyps, the Board finds that the examiners, who are trained in making this type of medical determination, are more competent to diagnose nasal polyps owing to allergic rhinitis. All four examination reports already discussed show the Veteran did not have nasal polyps. Moreover, even when not taking continuous/daily medication (for example in 2015), he still did not have nasal polyps. Thus, the evidence is against finding that he has this requirement of nasal polyps due to his allergic rhinitis that, in turn, would permit granting a greater rating. As such, a rating higher than 10 percent is not warranted. In addition, the evidence does not reflect three or more incapacitating episodes per year of sinusitis, requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting (see DC 6514). In this regard, the Board also points out that the Veteran is separately rated for headaches associated with his allergic rhinitis under DC 8100. Thus, his complaints of headaches cannot be considered in whether he is entitled to a 30 percent rating under DC 6514 as long as he is in receipt of a 30 percent rating for his headaches associated with his allergic rhinitis under DC 8100 because that would be impermissible pyramiding.   Thus, the Board finds that a 10 percent rating under DC 6522 appropriately compensates the Veteran for his allergic rhinitis. As the preponderance of the evidence is against any greater rating, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.