Citation Nr: 21064514 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-00 447 DATE: October 20, 2021 ORDER A reduction of the disability rating for service-connected allergic rhinitis from 30 percent to 0 percent, effective February 1, 2017, was improper, and the 30 percent rating is restored. Entitlement to an initial compensable evaluation for allergic rhinitis for the period prior to February 28, 2013 is denied. Entitlement to an evaluation in excess of 30 percent for allergic rhinitis for the period beginning February 28, 2013 is denied. Entitlement to an evaluation of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) for the period prior to March 29, 2016 is granted. Entitlement to an evaluation in excess of 50 percent for PTSD for the period beginning March 29, 2016 is denied. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to a compensable initial evaluation for bilateral sensorineural hearing loss is remanded. FINDINGS OF FACT 1. The April 2016 VA examination, which was conducted at the time of the disability rating reduction from 30 percent to 0 percent, did not adequately showed improvement of the Veteran's allergic rhinitis disability. 2. For the period prior to February 28, 2013, the evidence of record did not show that the Veteran's allergic rhinitis resulted in more than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. 3. For the period beginning February 28, 2013, with the restoration of the 30 percent disability rating granted in this decision, the Veteran has been receiving the maximum disability rating of 30 percent for allergic rhinitis under Diagnostic Code 6522. 4. Resolving reasonable doubt in the Veteran's favor, his PTSD resulted in occupational and social impairment with reduced reliability and productivity for the period prior to March 29, 2016. 5. For the entire period on appeal, the preponderance of the evidence is against finding that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The disability rating for allergic rhinitis was improperly reduced from 30 to 0 percent, and the criteria for restoration of a 30 percent rating for allergic rhinitis from February 1, 2017 have been met. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). 2. For the period prior to February 28, 2013, the criteria for an initial compensable evaluation for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.27, Diagnostic Code 6522 (2020). 3. For the period beginning February 28, 2013, the criteria for an evaluation in excess of 30 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.27, Diagnostic Code 6522 (2020). 4. Resolving reasonable doubt in the Veteran's favor, for the period prior to March 29, 2016, the criteria for an evaluation of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 5. For the period beginning March 29, 2016, the criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1990 and from January 2003 to January 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from October 2010 rating decision (allergic rhinitis), July 2014 rating decision (PTSD), May 2015 rating decision (left knee), and June 2016 rating decision (hearing loss) rendered by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. The Veteran is seeking higher evaluations for service-connected allergic rhinitis and PTSD. Rating Reduction During the appeal period for the Veteran's increased initial rating claim for allergic rhinitis, the RO increased the disability rating to 30 percent from February 28, 2013, and then reduced it from 30 percent to 0 percent, effective February 1, 2017. The regulations provide for different criteria for the reduction of a disability rating based on the length of time the rating for the reduced disability has been in effect. Specifically, 38 C.F.R. § 3.344(a)-(b) provide numerous procedural and substantive criteria that must be satisfied to reduce a rating that is considered stabilized. However, 38 C.F.R. § 3.344(c) clarifies that those criteria are only applicable when the reduced rating has continued for "long periods at the same level (five years or more)." Here, the rating in question had been in effect for less than five years at the time of reduction, and thus re-examinations disclosing improvement in disabilities may warrant a reduction in the rating. 38 C.F.R. § 3.344 (c) (2020). 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 occurred and that any such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This contrasts with a case involving a claim for an increased rating, in which the evidence must show that the disability has worsened. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus on evidence available to the Agency of Original Jurisdiction (AOJ) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board notes that the RO's disability rating reduction was based on findings during an April 2016 VA examination for rhinitis condition. On April 2016 VA examination, the examiner noted that there was no greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis and the Veteran did not have polyps. The examiner also noted that the Veteran is not on medication at the time of the examination with only mild sneezing and his predominant symptoms occur in summer and fall. However, in regard to his continuing symptoms of rhinitis, the Veteran testified during the January 2020 Board hearing that he has been experiencing bad sinus drainage, teary eyes, little migraines, blood with intense sneezing during his rhinitis flare-ups which happens about three times a year, and the symptoms can last for days at a time. The Veteran also testified that he switches between taking Tylenol and Ibuprofen for treatment. The Board finds the Veteran competent and credible to report his ongoing rhinitis symptoms. Notably, the Veteran's reported symptoms during the January 2020 hearing was documented during a May 2014 VA examination. The May 2014 VA examiner noted the Veteran's rhinitis symptoms of nonseasonal frontal headaches, clear rhinorrhea, post-nasal discharge, nasal stuffiness, and occasional sneezing. It was also noted during the examination that the symptoms occur once every two months and the Veteran treats them with either Tylenol or Ibuprofen. Moreover, the May 2014 examiner also did not find more than 50 percent obstruction of the nasal passage on both sides due to rhinitis or polyps. Thus, the Board concludes that the same findings made during the April 2016 examination cannot be considered as improvements of the disability. In light of the Veteran's competent and credible January 2020 testimony regarding his ongoing rhinitis symptoms which were documented during the prior May 2014 VA examination, the Board finds that the April 2016 VA examination did not adequately showed improvement of the Veteran's service-connected allergic rhinitis disability. Consequently, the rating reduction was not proper in this case and the 30 percent rating for allergic rhinitis, effective February 1, 2017, must be restored. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). Increased ratings Now the Board will turn to the Veteran's increased rating claims. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where service connection has already 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 Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Allergic rhinitis The Veteran first disagreed with the initial noncompensable evaluation (0 percent) assigned for allergic rhinitis and his appeal continued since then. See October 2010 Rating Decision (0 percent initial disability rating was assigned, effective July 20, 2009). During the period on appeal, the RO increased the rating to 30 percent, effective February 28, 2013, based on a February 2013 VA examination. See May 2013 Rating Decision. Thus, the Board will examine whether the Veteran was entitled to a compensable rating for allergic rhinitis for the period prior to February 28, 2013 and also whether he is warranted more than 30 percent rating for the period beginning February 28, 2013. Allergic rhinitis is evaluated under Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent evaluation 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, and a maximum 30 percent evaluation is warranted for allergic rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522 (2020). Prior to February 2013, the Veteran submitted three medical records in support of his service connection claim for allergic rhinitis. All three records are from 2007 and it demonstrates the Veteran's allergic rhinitis symptoms such as nasal congestion and drainage, watery eyes, and sneezing. See August 2007 Emergency Room Note; September 2007 Notes. However, the Board finds that those evidence did not show that the Veteran's allergic rhinitis resulted in more than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Also, there is no other evidence of record that shows the severity of the Veteran's allergic rhinitis that warrants compensable evaluation prior to February 2013. Consequently, the Veteran's entitlement to an initial compensable evaluation for allergic rhinitis for the period prior to February 28, 2013 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.27, Diagnostic Code 6522 (2020). For the period beginning February 23, 2013, the Veteran has been receiving the maximum disability rating of 30 percent for allergic rhinitis under Diagnostic Code 6522 with the restoration of the 30 percent rating granted in this decision. Notably, the maximum rating available under Diagnostic Code 6522 is 30 percent. Also, the Veteran's symptoms shown in the evidence of record do not warrant evaluations under additional Diagnostic Codes. Consequently, the Veteran's entitlement to an evaluation in excess of 30 percent for allergic rhinitis for the period beginning February 23, 2013 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.27, Diagnostic Code 6522 (2020). 2. PTSD The Veteran was initially evaluated at 30 percent disabling for his service-connected PTSD, effective July 20, 2009. See May 2013 Rating Decision. The Board notes that the Veteran's filed an increased rating claim on June 4, 2015. In a June 2016 rating decision, the RO continued the 30 percent disability rating and denied the Veteran's increased rating claim. The Veteran timely disagreed with that decision and his appeal has been continuing since then. During the appeal period, the RO increased the Veteran's disability rating for PTSD from 30 percent to 50 percent, effective March 29, 2016. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues before the Board are whether the Veteran was entitled to a disability rating in excess of 30 percent for PTSD prior to March 29, 2016, and whether more than a 50 percent disability rating is warranted for the period beginning March 29, 2016. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, a 50 percent is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2020). On September 2015 VA examination for PTSD, the examiner confirmed the Veteran's current diagnosis of PTSD. The examiner observed that the Veteran was alert and fully oriented during the examination. The Veteran reported depressed feelings and displayed an irritated affect. The examiner noted that the Veteran's eye contact, hygiene, and level of cooperation were adequate, and his speech was logical, relevant, and goal-directed without remarkable circumstantiality. The examiner reported that the Veteran did not present with any bizarre or peculiar preoccupations, and he did not report any current suicidal or homicidal ideation. The examiner also provided that there was no overt evidence of responding to internal stimuli during the September 2015 examination. As to the Veteran's PTSD symptoms, the examiner indicated that the Veteran exhibits: recurrent, involuntary, and intrusive distressing memories of the traumatic events; avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic events; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; and sleep disturbances. The examiner also indicated that the Veteran's PTSD symptoms described cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, and the disturbance is not attributable to the physiological effects of a substance (e.g., medication or alcohol) or another medical condition. However, the examiner concluded that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning, or to require continuous medication. The examiner also provided that the Veteran's symptoms appear to be under control without treatment and they do not appear to impact occupational functioning or significantly impact the activities of daily living. The Board notes that the evidence of record does not show that the Veteran has been receiving treatments or taking medications for PTSD since May 2010. Based on above, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence demonstrates that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity for the period prior to March 29, 2016. Thus, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an evaluation of 50 percent, but no higher, for PTSD for the period prior to March 29, 2016 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). Now the Board will examine whether the Veteran is entitled to an evaluation in excess of 50 percent for PTSD for the period beginning March 29, 2016. On April 2016 VA examination for PTSD, the examiner noted the Veteran's following symptoms: chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was cooperative with the examiner, but appeared to be somewhat irritable and demonstrated flat affect during the examination. The examiner noted that the Veteran was alert, oriented, and had adequate hygiene. The examiner provided that there was no obvious cognitive problem noted during the examination and the Veteran's though processes were logical. The Veteran denied suicidal intent. The Veteran reported that he has been working as a correctional officer for the past 22 years where he has frequent confrontations with inmates and some difficulty with getting along with supervisors and coworkers. The Veteran also reported that he lives alone and does not have close friends. The examiner concluded that the Veteran's PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. On May 2018 examination for PTSD, the examiner confirmed the Veteran's current diagnosis of PTSD. The Veteran reported that he lives alone and keeps in touch with his adult children occasionally. The Veteran also reported that he has been working as a correctional officer for approximately 24 years. He stated that he does not get along well with the inmates or his subordinates, but denied receiving any formal disciplinary actions. The examiner noted the Veteran's symptoms of depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, and disturbances of motivation and mood; however, the examiner provided that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning, or to require continuous medication. During the January 2020 Board hearing, the Veteran described that his PTSD symptoms are "a lot like memory loss," and stated that he experiences short term memory loss due to PTSD. He provided that he has to focus on trying to remember things and feels constantly insecure. The Veteran provided that he has some sleep troubles, occasional nightmares, and occasional irritability and trouble with concentrating. The Veteran testified that his PTSD symptoms affect his job, because he has to control his anger while performing his job duties as a correctional officer. The Veteran denied having panic attacks or having thoughts of harming himself. As to his social life, the Veteran stated that he usually keeps to himself without socializing with others at work or outside of work. The Veteran also testified that he has not been receiving any treatments for PTSD since he had some counseling sessions when he was first diagnosed with PTSD. Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood for the entire period on appeal. Consequently, the Veteran's entitlement to an evaluation in excess of 50 percent for PTSD for the period beginning March 29, 2016 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). REASONS FOR REMAND 1. Service connection for a left knee condition The Veteran is seeking service connection for a left knee condition and contends that his current left knee condition is a result of performing military duties of driving trucks. In this regard, the Board notes that the Veteran underwent a VA examination in June 2014. The June 2014 VA examiner remarked that the Veteran has mild degenerative changes in the left knee. However, the examiner opined that the Veteran's military duties including climbing in and out of large trucks and getting on top of the trucks did aggravate his knee condition, but not at a rate that would be greater than any job he might be required to perform as a civilian. The Board finds that the June 2014 examiner's opinion is inadequate as the question before the Board is whether the Veteran's current left knee condition is at least as likely as not a result of his service or had its onset in service regardless of how the nature of the Veteran's military duties compare to civilian jobs. Also, the Board finds that the current diagnosis for the Veteran's left knee condition should be clarified as well since the examiner only provided a right knee diagnosis in the diagnosis section of the examination report. Based on above, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his current left knee condition in order to make a fully informed decision on the matter. 2. Increased rating for bilateral hearing loss The Veteran is also seeking higher initial evaluation for bilateral sensorineural hearing loss. The Board notes that the Veteran is currently rated at 0 percent disabling. During the January 2020 Board hearing, the Veteran testified that his hearing loss has worsened over the last few years. He provided that he has to look at others in order to understand them. The Board notes that the latest audiological examination was conducted in May 2016. In light of the Veteran's testimony on worsening of his hearing loss symptoms, the Board finds that he should be afforded an updated audiological examination to determine current severity of his bilateral hearing loss disability prior to final adjudication of the matter. Accordingly, the matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current left knee condition. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must opine whether the Veteran's current left knee condition is at least as likely as not (50 percent or greater probability) a result of his active duty service or had its onset in active duty service. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. The examiner must provide a complete written rational for any opinion rendered. 2. The AOJ should schedule the Veteran for an examination by an audiologist to determine the current severity of his service-connected bilateral sensorineural hearing loss. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner should provide a full description of the Veteran's current bilateral hearing loss disability and report all signs and symptoms necessary for evaluating it under the rating criteria. 3. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.