Citation Nr: 21071855 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-51 311 DATE: December 1, 2021 ORDER The reduction in the rating from 50 percent to 30 percent for sinusitis, effective March 1, 2018, was proper. The reduction in rating from 30 percent to 10 percent for sinusitis, effective January 1, 2020, was improper; the restoration of the 30 percent rating is granted. A rating in excess of 30 percent for sinusitis as of March 1, 2018, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran never underwent surgery to address her sinusitis. 2. At the time of the reduction in the September 2018 rating decision, there was insufficient evidence showing sustained and material improvement in the Veteran's sinusitis that was reasonably certain to be maintained under ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction in the rating from 50 percent to 30 percent for sinusitis, effective March 1, 2018, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6510. 2. The reduction in the rating from 30 percent to 10 percent for sinusitis, effective January 1, 2020, was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6510. 3. As of March 1, 2018, the criteria for a rating greater than 30 percent for sinusitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to December 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from December 2017, May 2018, September 2018, and October 2019 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Veteran disagrees with her sinusitis disability rating reduction effective March 1, 2018, which lowered her rating from 50 percent to 30 percent, and the further reduction effective January 1, 2020, which lowered her rating from 30 percent to 10 percent. During the October 2020 hearing, the Veteran testified that her sinusitis has remained unchanged since 2013. She argued that the August 2018 VA examination was inadequate. She reported she takes medication three times a day, has eight incapacitating episodes a year, and experiences near-constant episodes of sinusitis that cause headaches, pain, tenderness, discharge, and crusting. The Veteran reported that no surgery was ever offered as a treatment for her sinusitis. The RO has fulfilled the procedural requirements set forth under 38 C.F.R. § 3.105(e) for rating reductions, and the Board will now consider the propriety of the rating reduction. When a veteran's rating is reduced, the Board must decide whether the reduction was proper. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). In any reduction case, VA needs to comply with several general VA regulations applicable to all rating reduction cases, regardless of the rating level or how long that rating has been in effect. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). In this regard, VA must determine whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Brown, 5 Vet. App at 421; see 38 C.F.R. §§ 4.1, 4.2, 4.13. VA must determine 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, 5 Vet. App. at 421; see 38 C.F.R. §§ 4.2, 4.10. VA bears the burden of establishing by a preponderance of the evidence that the rating reduction was warranted. Brown, 5 Vet. App. at 421-22. When the RO reduced the Veteran's sinusitis rating in December 2017, her 50 percent rating had been continuously in effect since March 2013, less than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b), regarding evidentiary requirements for a disability rating in effect for a period of five years or more, do not apply. The Veteran's chronic sinusitis was originally rated under Diagnostic Code 6512-6513. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the other code is shown after the hyphen. 38 C.F.R. § 4.27. The assigned Diagnostic Code 6512-6513 suggests that the Veteran's chronic sinusitis is rated based on chronic frontal sinusitis manifest in chronic maxillary sinusitis. 38 C.F.R. § 4.971. A review of the evidence reflects that the Veteran's sinusitis has manifested in chronic frontal sinusitis with occasional symptoms affecting the other sinuses. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 6510 to show that the Veteran has chronic pansinusitis, i.e., sinusitis affecting all sinuses. Regardless all the Diagnostic Codes for sinusitis are evaluated under the General Rating Formula for Sinusitis; thus, the use of a different Diagnostic Code did not affect the Veteran's disability rating. The General Rating Formula for Sinusitis provides that a 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. A 30 percent 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 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 noncompensable rating is warranted when sinusitis is detected by X-ray only. Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. A review of the record demonstrates the reduction in the rating from 50 percent to 30 percent for sinusitis, effective March 1, 2018, was proper, but the further reduction from 30 percent to 10 percent, effective January 1, 2020, was improper. Since March 1, 2018, VA treatment records show continuous treatment for chronic frontal and maxillary sinusitis characterized by tenderness, headaches, and pain, at times requiring the use of antibiotics. The records also show ongoing treatment for migraine headaches, which appear distinct from the Veteran's sinus headaches. In August 2020, a VA nurse advised the Veteran to go to urgent care for her sinus infection symptoms. VA treatment records also suggest the Veteran received some private treatment for her sinusitis. April 2018 X-ray imaging of the Veteran's sinuses showed the paranasal sinuses were well pneumatized and are clear. There was no mucoperiosteal thickening, and there were no air-fluid levels. The visualized orbital and facial soft tissues were unremarkable. There were no focal bony abnormalities. The physician's impression was of an unremarkable radiographic appearance of the paranasal sinuses: maxillary, frontal, ethmoid, and sphenoid sinuses. A May 2018 VA examiner determined the Veteran's sinusitis affected the maxillary, frontal, ethmoid, and sphenoid sinuses. Notably, the examiner did not find the veteran's sinusitis caused pansinusitis: "inflammation involving all of the paranasal sinuses on one side;" the paranasal sinuses include the maxillary, frontal, ethmoid, and sphenoid sinuses. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1350, 1692 (33d ed. 2019). The examiner found sinusitis resulted in daily near constant sinusitis symptoms of headaches, sinus pain, sinus tenderness, purulent discharge, crusting, clear rhinorrhea, and jaw pain. The Veteran experienced seven or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past twelve months. The Veteran had three or more incapacitating episodes of sinusitis requiring prolonged (four to six week) antibiotics treatment in the past twelve months. An August 2018 VA examiner found the Veteran's sinusitis affected her frontal and sphenoid sinuses and resulted in episodes of sinusitis and no other symptoms. The examiner determined that the Veteran had no incapacitating episodes of sinusitis and one non-incapacitating episode of sinusitis, which did not require prolonged (four to six weeks) antibiotics treatment in the last twelve months. The Board finds that when all the above evidence is taken together, the reduction for the Veteran's sinusitis from 30 percent to 10 percent, effective January 1, 2020, was improper. While there were indications of improvement, the burden to justify reducing the disability rating is on VA, and VA must comply with applicable standards. See Brown, 5 Vet. App. at 421. In this instance, the burden has not been met. When the more recent evidence is compared with the evidence dated at the time of the May 2018 rating decision granting a 30 percent rating for chronic sinusitis, it is not apparent improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work or whether the examination reports reflecting such change are based on a thorough evaluation. See id. The 30 percent rating was based on the May 2018 VA examiner's finding that the Veteran had more than seven non-incapacitating and three or more incapacitating episodes in the past twelve months. Three months following, the August 2018 VA examiner noted that the Veteran stated that there had been no change in her chronic sinusitis condition since her last examination. The August 2018 VA examiner did not address whether there had been improvement in the Veteran's ability to function under the ordinary conditions of life and work; indeed, the examiner provided no explanation for the finding that the Veteran's sinusitis had no functional impact. Accordingly, the reduction of the Veteran's disability rating for sinusitis from 30 percent to 10 percent, effective January 1, 2020, was not proper, and restoration is warranted. However, the evidence of record does not support a rating higher than 30 percent throughout the period on appeal. The Veteran has never had surgery to treat her sinusitis. Indeed, no physician has ever told the Veteran she needs surgery for her sinusitis, and her April 2018 X-ray examination showed clear paranasal sinuses. The evidence unequivocally shows the Veteran does not meet the criteria for a rating of 50 percent for her service-connected chronic sinusitis. Accordingly, the reduction of the Veteran's disability rating for sinusitis from 50 percent to 30 percent, effective March 1, 2018, was proper. A rating in excess of 30 percent for the entire period on appeal is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Costa, Stephanie D. 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.