Citation Nr: 20007201 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-09 292 DATE: January 28, 2020 ORDER Restoration of a 10 percent rating for allergic rhinitis from August 23, 2017 is denied. Entitlement to a compensable rating for allergic rhinitis is denied. FINDING OF FACT From August 23, 2017, the Veteran's allergic rhinitis was not manifested by polyps, greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. CONCLUSION OF LAW The reduction of the rating for the Veteran’s service-connected allergic rhinitis from 10 percent to noncompensable, effective August 23, 2017 was proper; the criteria for restoration of the 10 percent rating have not been met and the criteria for a compensable rating for allergic rhinitis have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.344, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1992 to March 1993 and from May 1993 to October 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.156(a), 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a veteran exhibits symptoms of the disability at issue and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Rating Reductions Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). Here, the Veteran's overall rating (and therefore compensation) was not reduced as a result of the reduction in question-in fact; his combined rating at the time remained exactly the same. Consequently, the notice requirements of 38 C.F.R. § 3.105 (e) do not apply. The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c). Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344 (a) and (b). In the present case, the Veteran's 10 percent disability rating for allergic rhinitis was awarded effective October 14, 2015, and was reduced effective October 23, 2017, less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Accordingly, the requirements under 38 C.F.R. § 3.344 (a) and (b) do not apply in the instant case; but rather, 38 C.F.R. § 3.344 (c) applies in this matter, which provides that evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. See 38 C.F.R. § 3.344 (c). The Veteran’s allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522, for allergic or vasomotor rhinitis. Under DC 6522, a 10 percent disability rating is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent disability rating is assigned for allergic rhinitis with polyps. The Board notes that this diagnostic code does not provide for a zero percent rating. However, in every instance where the Rating Schedule does not provide a zero percent rating for a particular diagnostic code, such a rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Having carefully reviewed the evidence of record, the Board finds that restoration of the 10 percent disability rating for allergic rhinitis, effective August 23, 2017, is not warranted as the reduction was proper. Critically, the evidence demonstrates that the Veteran underwent several VA examinations during the appeal, and that he last evidenced complete obstruction on one side of his nasal passage at a March 2017 VA examination. Subsequently, beginning with an August 23, 2017 examination, and on later November 2017 and December 2019 VA examinations, there was no finding that the Veteran’s allergic rhinitis caused greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. As discussed above, a 10 percent rating under Diagnostic Code 6522 requires either 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. As indicated by the August 23, 2017 VA examination, these criteria were not met. The Board finds that the August 2017 VA examination was thorough and at least as full and complete as those in which payments were authorized or continued. Material improvement is shown. The treatment records do not contradict this finding. To the extent that the Veteran's assertions are contrary to this finding, they are outweighed by the examination showing an absence of obstruction of nasal passages either 50 percent on both sides or complete on one side. As such, the reduction was proper. As to the Veteran's assertions for an increased rating, the preponderance of the evidence is against such finding. As discussed above, the Veteran has not evidenced complete obstruction on one side of his nasal passage since March 2017. Moreover, there has never been evidence of polyps to warrant the maximum 30 percent rating. The most recent examination in December 2019 was negative for findings of any of the criteria required for a compensable rating under Diagnostic Code 6522. The Board recognizes the Veteran submitted a July 2017 letter from his Dr. A. from Leavenworth VA Medical Center that noted the medication he was taking for his chronic allergic rhinitis. However, the Board notes that the VAMC medical records and VA examinations obtained through out the appeal period fail to show nasal polyps or greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. Therefore, the Veteran’s allergic rhinitis does not warrant a higher evaluation under Diagnostic Code 6522. The Board has considered the statements submitted by the Veteran and family members and is sympathetic to his complaints of sinus pain and pressure, migraines, fatigue, watery eyes, runny nose, post nasal drip, and difficulty swallowing. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s allergic rhinitis has been provided by the medical personnel who have examined him and who have made pertinent clinical findings in conjunction with the examinations. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran’s statements in support of his claim. Thus, the current noncompensable rating for the Veteran’s allergic rhinitis is appropriate. For all the foregoing reasons, the preponderance of the evidence is against an increased rating for the Veteran’s allergic rhinitis, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Briana Cavallaro 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.