Citation Nr: 21002562 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-51 046 DATE: January 14, 2021 ORDER The reduction of the disability rating for pansinusitis from 50 percent disabling to 30 percent disabling, effective September 1, 2016, was not proper; restoration of the 50 percent rating is granted. The reduction of the disability rating for intervertebral disc syndrome (IVDS) from 20 percent to 10 percent disabling, effective September 1, 2016, was not proper; restoration of the 20 percent rating is granted. FINDINGS OF FACT 1. The 50 percent rating for pansinusitis was reduced without ensuring that an improvement in the Veteran’s disability had actually occurred. 2. The 20 percent rating for IVDS was reduced without ensuring that an improvement in the Veteran’s disability had actually occurred. CONCLUSIONS OF LAW 1. The reduction of the disability rating for pansinusitis from 50 percent disabling to 30 percent disabling, effective September 1, 2016, was not proper; it is therefore void, and a restoration of a 50 percent rating from September 1, 2016 is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.97, Diagnostic Code (DC) 6510. 2. The reduction of the disability rating for IVDS from 20 percent to 10 percent disabling, effective September 1, 2016, was not proper; it is therefore void, and a restoration of a 20 percent rating from September 1, 2016 is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.71A, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to September 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision by a Department of Affairs (VA) Regional Office (RO). The Veteran testified in a Board hearing before the undersigned Veterans Law Judge in July 2020. A copy of the transcript has been associated with the claims file. No other issues have been raised. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Several due process protections are afforded to Veterans when a reduction in an evaluation of a service-connected disability is considered. Primarily, when the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, the RO must prepare a rating decision proposing the reduction or discontinuance that must set forth all material facts and reasons. The RO must notify the Veteran of the contemplated action and the reasons therefore and that the Veteran has 60 days to present additional evidence showing that compensation should be continued at the present level. In addition, the RO must inform the Veteran that she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice; if a predetermination hearing is timely requested, benefits payments shall be continued at the previously established level pending a final determination concerning the proposed action. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e), (i). Additional protections in any case involving a rating reduction include a requirement for the fact-finder to ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344. Ratings continued for five years or more are governed by § 3.344(a) and (b), which provide that any rating reduction is valid only if, after a review of the entire record of examinations and the medical-industrial history, it is based upon an examination that is at least as complete as the examination that formed the basis for the original rating. See Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Ratings continued for less than five years, as is the case in this matter, are governed by § 3.344(c), which provides that a reexamination disclosing improvement is enough to warrant a rating reduction. In considering whether a reduction was proper, the Board must focus on the evidence of record available at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). 1. The reduction of the disability rating for pansinusitis from 50 percent disabling to 30 percent disabling, effective September 1, 2016, was not proper; the 50 percent rating is restored The Board finds that the due process protections in 38 C.F.R. § 3.105(e) have been met in regard to the rating reduction for pansinusitis. An April 2016 rating decision proposed to reduce the Veteran’s disability level from 50 percent to 30 percent. He was informed of the proposed reduction that same month in a letter which further detailed the reasons therefor. He was subsequently provided with more than 60 days to provide evidence that his rating should not be reduced. The June 2016 rating decision on appeal reduced the Veteran’s disability rating for pansinusitis to 30 percent, effective September 1, 2016. The Board must now determine whether the standards for reduction have been met in this case. The central inquiry is whether the disability at issue had improved. Prior to the rating decision at issue, the Veteran was assigned a 50 percent rating for pansinusitis effective in November 2014. As the Veteran’s disability was rated at 50 percent for a period of less than five years, the standard in this case is whether an adequate reexamination was conducted which disclosed improvement in the disability, such that the reduction was warranted. 38 C.F.R. § 3.344(c). The claims file contains a March 2015 sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx Disability Benefits Questionnaire. The examiner confirmed diagnoses of chronic sinusitis later indicated to be pansinusitis and deviated nasal septum (traumatic). Symptoms included near-constant sinusitis, pain and tenderness of affected sinus, and purulent discharge or crusting. The examination report noted three non-incapacitating and no incapacitating episodes of sinusitis during the past 12 months. Endoscopic sinus surgery was noted. The examiner concluded by noting the Veteran is status post (s/p) most recent surgery, and hopefully his condition will improve. The Veteran was afforded an April 2016 VA sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx examination. The examiner confirmed a diagnosis of acute/chronic pansinusitis. The medical history section of the examination report notes the Veteran underwent endoscopic sinus surgery (ESS), septoplasty, and turbinate reduction in 2009 but he continued to experience symptoms, so he underwent an ESS revision in 2015. The examiner reviewed and included Ear Nose Throat (ENT) clinic follow-up notes that demonstrated improvement. The Veteran has signs/symptoms attributable to chronic sinusitis noted as mild polypoid inflammation. No non-incapacitating or incapacitating episodes of sinusitis were noted in the past 12 months. Imaging studies reviewed included a September 2014 CT and March 2016 nasal endoscopy. However, the Board has reviewed medical evidence in the claims file that weighs against a finding that the Veteran demonstrated an actual improvement to his disability. A May 2016 VA treatment record noted that the Veteran reported he has an increasing cough, which he has been told could be a result of his chronic nasal drip and repeated sinus infections. The same record noted he was awaiting referral to ENT for further valuation. An August 2016 letter from his treating VA doctor notes in part that the Veteran has chronic sinus disease that even after multiple surgical procedures remains symptomatic. A May 2017 VA ENT record noted the Veteran was complaining about symptoms including right forehead soreness, nasal drainage (mostly clear), feeling of needing to sneeze, hyposmia (mostly none at all), congestion and periodic feeling of sinus pressure. The record notes a regrowth of nasal polyps and the Veteran’s symptoms are worse. The same record notes the treatment provider believes the Veteran will likely need an additional sinus surgery during his lifetime. The Veteran and his spouse testified at the July 2020 hearing that the 2015 sinus surgery cleaned out the infection and removed the sinus polyps, but they started to return within the following year. The Veteran also testified he has quarterly follow-up visits with his ENT to determine if he has a sinus infection or the polyps have regrown. The Board notes that the Veteran and his spouse are competent to report the symptomatology experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The evidence does not establish that either the Veteran or his spouse has the medical experience or training to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds these lay statements are probative of the Veteran’s continued symptomatology. Considering the evidence in the light most favorable to the Veteran, it is found that his symptoms improved but quickly returned within one year. Thus, the requisite finding of actual improvement as based upon an adequate examination has not been established in this case. As such, the preponderance of the evidence supports the claim, and the reduction was not proper. Accordingly, restoration of a 50 percent rating for pansinusitis after September 1, 2016, is hereby warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. As the Veteran indicated in his September 2016 Notice of Disagreement (NOD) that a 50 percent evaluation for pansinusitis was the level of evaluation sought, this is considered a full grant of the benefit sought on appeal. 2. The reduction of the disability rating for IVDS from 20 percent to 10 percent disabling, effective September 1, 2016, was not proper; the 20 percent rating is restored As an initial matter, the Board finds that the due process protections in 38 C.F.R. § 3.105(e) are not for application in this matter as the rating reduction for IVDS accomplished in the June 2016 rating decision did not affect the Veteran’s overall disability as noted in the decision. The Board must now determine whether the standards for reduction have been met in this case. In this regard, the central inquiry is whether the disability at issue had improved. Prior to the rating decision at issue, the Veteran was assigned a 20 percent rating for IVDS effective in July 2015. As the Veteran’s disability was rated at 20 percent for a period of less than five years, the standard in this case is whether an adequate reexamination was conducted which disclosed improvement in the disability, such that the reduction was warranted. The record shows the Veteran was afforded May 2016 VA back (thoracolumbar spine) examination. The examiner confirmed a diagnosis of degenerative disc disease of the lumbar spine from 2014. The medical history section of the examination noted the Veteran’s report that low back pain bothers him after he walks ½ block, stands for 3-5 minutes, or climbs one flight of stairs. Diagnostic imaging reviewed included an April 2014 lumbar spine x-ray that noted normal curvature and no disc narrowing, and an August 2014 lumbar spine MRI without contrast that noted mild straightening of lumbar spine curvature, and mild broad-based disc bulging at L4-L5 and L5-S1, and mild bilateral neuroforaminal stenosis was noted at L5-S1. No degenerative disc disease was noted. Range of motion (ROM) results included forward flexion 0 to 75 degrees, extension 0 to 30 degrees, right lateral flexion 0 to 25 degree, left lateral flexion 0 to 25 degrees, right lateral rotation 0 to 25 degrees and left lateral rotation 0 to 25 degrees, total cumulative ROM 205 degrees. No IVDS was noted. The Veteran was found to have guarding not resulting in abnormal gait or abnormal spinal contour. The examiner noted a diagnosis of mild degenerative disc disease and that the Veteran was getting significantly deconditioned, weak, and stiff due to lack of exercise. The examiner also concluded that the Veteran’s current condition and diagnosis was compatible with his current service-connected diagnosis. The Board also reviewed the July 2015 VA back (thoracolumbar spine) examination, wherein the examiner confirmed diagnoses of lumbosacral strain and IVDS. ROM results included forward flexion 0 to 70 degrees, extension 0 to 15 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, left lateral rotation 0 to 30 degrees, and total cumulative ROM 205 degrees. The Veteran was noted to have guarding resulting in abnormal gait or abnormal spinal contour. IVDS was noted without any episodes of required bed rest during the past 12 months. Again, the Board has reviewed medical evidence in the claims file that weighs against a finding that the Veteran demonstrated an actual improvement to his disability. A December 2015 VA treatment record noted the Veteran’s gait was within normal limits, but the Veteran was having symptoms that might require additional evaluation. An August 2016 letter from his treating VA doctor noted in part that the Veteran had low back pain symptoms that persist and are unlikely to resolve. VA treatment records also include December 2016 lumbosacral spine imaging, wherein the findings note that the Veteran has levoconvex scoliosis of the lumbar spine, mild disc space narrowing at L5-S1, and mild degenerative change at L4-L5 and L3-L4. The Veteran and his spouse testified at the July 2020 hearing regarding continued and increased back pain symptoms. The Board notes that the Veteran and his spouse are competent to report the symptomatology experienced, including pain. See Layno v. Brown, supra. The evidence reflects that neither the Veteran nor his spouse has the medical experience or training to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, supra. However, the Board finds that these lay statements are probative of the Veteran’s continued back pain symptomatology. Considering the evidence in the light most favorable to the Veteran, it is found that notwithstanding the removal of IVDS diagnosis, the Veteran’s symptoms are not significantly improved over the most prior July 2015 VA back examination results, specifically as his total ROM remains the same. Thus, the requisite finding of actual improvement as based upon an adequate examination has not been established in this case. As such, the preponderance of the evidence supports the claim, and the reduction was not proper. Accordingly, restoration of a 20 percent rating for IVDS after September 1, 2016, is hereby warranted. 38 U.S.C. § 5107(b). As the Veteran indicated in his September 2016 NOD that a 20 percent evaluation for IVDS was the level of evaluation sought, this is considered a full grant of the benefit sought on appeal. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, Associate Counsel 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.