Citation Nr: 21072087 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-49 516 DATE: December 2, 2021 ORDER The reduction of a disability evaluation from 50 percent to 10 percent for the Veteran's service-connected allergic rhinosinusitis, effective April 1, 2015, was improper, and restoration of the prior 50 percent disability evaluation is granted. REMANDED Entitlement to disability rating based upon individual employability (TDIU) due to the Veteran's service-connected disabilities is remanded. FINDINGS OF FACT 1. At the time of the January 2015 rating decision reducing the evaluation for the Veteran's service-connected allergic rhinosinusitis from 50 percent to 10 percent, effective April 1, 2015, the Veteran's 50 percent evaluation had been in effect since February 11, 2011, fewer than five years. 2. At the time of the effective date of the January 2015 rating decision reducing the disability rating for the Veteran's service-connected allergic rhinosinusitis from 50 percent to 10 percent, effective April 1, 2015, a preponderance of the evidence of record did not demonstrate actual improvement in the Veteran's symptoms since February 11, 2011, or in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the evaluation for the Veteran's service-connected allergic rhinosinusitis from 50 percent to 10 percent was not proper; accordingly, the Veteran's 50 percent disability evaluation is restored. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.321, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.97, Diagnostic Code 6510. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the U.S. Army from December 1980 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which reduced the Veteran's evaluation for his service-connected allergic rhinosinusitis from 50 percent to 10 percent, effective April 1, 2015. The Veteran testified before the undersigned at a hearing held in June 2021; a transcript of that hearing is of record. The Board recognizes that where a veteran seeking an increased disability rating submits evidence of unemployability, the veteran's entitlement to a total disability based on individual unemployability (TDIU) must be considered as an element of any underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. § 4.16. In this case, the Veteran contends that his service-connected disabilities significantly impair his ability to secure or to follow substantially gainful employment, and the adjudication herein of the Veteran's increased rating claim for his service-connected allergic rhinosinusitis could potentially render him eligible for a schedular TDIU. See id. Accordingly, the Board has amended the issues on appeal to include entitlement to a TDIU as reflected above. 1. The reduction of a disability evaluation from 50 percent to 10 percent for the Veteran's service-connected allergic rhinosinusitis, effective April 1, 2015, was improper, and restoration of the prior 50 percent disability evaluation is granted. In June 1993, the Board awarded the Veteran service connection for his allergic rhinosinusitis and assigned a 10 percent evaluation effective January 18, 1993, and a January 2001 rating decision subsequently assigned a 30 percent evaluation effective August 16, 2000. In February 2011, the Veteran filed a claim for an increased evaluation, and an August 2011 rating decision subsequently assigned a 50 percent evaluation effective February 11, 2011. In October 2012, the Veteran submitted another claim for an increased evaluation in which he contends that his service-connected allergic rhinosinusitis was worsened since his prior VA examination. Subsequently, based upon an August 2013 VA examination, an October 2013 rating decision proposed reducing the Veteran's evaluation from 50 percent to 10 percent; thus, a letter dated October 31, 2013, was mailed to the Veteran's most recent address of record, providing notification of the proposed rating reduction and affording him an opportunity for a hearing, as well as a 60-day window to submit additional evidence in support of continuing his 30 percent disability rating. See 38 C.F.R. § 3.105(e). Subsequently, on November 14, 2013, within the 60-day window and in response to the October 31, 2013, VA letter, the Veteran submitted a lay statement in support of his claim, requesting a hearing and contending that his service-connected allergic rhinosinusitis had not improved. In December 2014, the Veteran was afforded an additional VA examination in lieu of his requested hearing, which culminated in a report finding as follows: (1) the Veteran's VA treatment records dated November 2014 indicate the following from his most recent allergy appointment: (a) the Veteran has a history of vasomotor rhinitis and chronic dyspnea; (b) during his last VA medical visit, his prescription medication (flunisolide) was continued, and nasal cromolyn was added, which has helped very little in alleviating his symptoms; (c) his primary symptoms involve nasal congestion and dyspnea; (d) his recent March 2014 CT scan was normal; (e) he has a history of uvuloplasty and septoplasty; (f) he has also been prescribed nasal Atrovent and hydroxyzine; and (g) the Veteran reported that his sinusitis symptoms are not improving and he continues to feel pressure in the sinuses; (2) the Veteran has a diagnosis of rhinitis which results in greater than 50 percent of obstruction of the nasal passage on both sides; (3) the Veteran has permanent hypertrophy of the nasal turbinates; and (4) the Veteran's allergic rhinosinusitis has an impact on his ability to work, as it results in very poor endurance due to shortness of breath. In January 2015, following the December 2014 VA examination report, the AOJ issued a rating decision reducing the Veteran's evaluation from 50 percent to 10 percent, effective April 1, 2015, and informed the Veteran of this rating reduction in a letter dated January 23, 2015. The Veteran filed a timely notice of disagreement (NOD) and this appeal followed. In June 2021, the Veteran testified at a Board hearing before the undersigned that his allergic rhinosinusitis has been ongoing, has continued to get worse, and has been aggravated, resulting in the following symptoms, including during the time period from 2013 to 2014: nasal sores; nasal polyps; excessive drainage and mucus that cannot be stopped; crusting; bleeding; bilateral blockage of sinuses/nasal passages; and choking from nasal drainage and mucus. The Veteran further testified as follows: (1) his most recent VA examination was not "right" and failed to address his current symptoms; (2) during his June 2001 VA surgery, his soft palate was removed, and his throat was widened, which made his sinus conditions and symptoms worse, including excessive drainage and choking; (3) he cannot stop the drainage and sometimes wakes up choking; (4) he uses a prescription nasal spray daily; (5) he suffers from flareups which require prescription antibiotics, and during the period from 2013 to 2014 he suffered from three to four flareups requiring prescription antibiotics; (6) during the period from 2010 to 2011, he also suffered from three to four flareups requiring prescription antibiotics; (7) his other prescription medications include alopurinol, an alprostadil (intracranial nasal) injection every week; cetirizine (Zyrtec) every day, and cromalin sodium nasal spray. In light of the foregoing, the Veteran contends that the restoration of his 50 percent disability evaluation is warranted in this case. For the reasons set forth below, the Board agrees and finds that the restoration of the Veteran's 50 percent disability rating for his service-connected allergic rhinosinusitis is warranted in this case. VA disability ratings are based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. See 38 U.S.C. § 1155. In no event shall a veteran's disability rating be reduced unless an improvement in the veteran's service-connected disability is shown to have occurred. See id. When a veteran's disability rating is reduced without compliance with applicable VA regulations, the erroneous reduction is void ab initio and must be vacated resulting in restoration of the prior rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991). Where a reduction in an evaluation of a service-connected disability or employability status 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 must be prepared setting forth all material facts and reasons. See 38 C.F.R. § 3.105(e). VA regulations further require that (1) the veteran be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor; (2) the veteran be given 60 days for the presentation of additional evidence to support the continuation of compensation payments at their present level; and (3) if additional evidence is not received within that period, the 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 beneficiary of the final rating action expires. See id. In this case, the Board finds that the October 2013 rating decision proposing the rating reduction and the October 2013 notice letter to the Veteran complied with the notice requirements specified in 38 C.F.R. § 3.105(e). In addition, the ultimate rating reduction was communicated in the January 2015 rating decision, effective April 1, 2015, with notice to the Veteran dated January 23, 2015. Accordingly, the Board finds that the requirements of 38 C.F.R. § 3.105(e) have been satisfied, as the requisite 60-day period expired prior to the assignment of the rating reduction effective date. Therefore, the Board may adjudicate the substance of the Veteran's claim, namely, whether a preponderance of the evidence of record demonstrates actual improvement in the Veteran's allergic rhinosinusitis or in the Veteran's ability to function under the ordinary conditions of life and work at the time of the January 2015 rating decision reducing the Veteran's disability rating from 50 percent to 10 percent. Prior to reducing a veteran's disability rating, VA is required to consider the entire history of the veteran's disability, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10; see also Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon a review of the entire record, whether the evidence of record reflects an actual change in the Veteran's disability, and whether the examination reports reflecting such change are based upon a thorough examination. See Faust v. West, 13 Vet. App. 342, 349-50 (2000). Thus, in any rating reduction appeal, not only must it be determined that an improvement in a disability has actually occurred, but also that 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, 420-21 (1993). In addressing whether improvement is shown, the last examination on which the disability rating at issue was assigned or continued generally serves as the point of comparison. See Hohol v. Derwinski, 2 Vet. App. 169, 172-73 (1992). However, if the disability rating was continued in order to see if improvement was in fact shown, the comparison point may also include prior examinations. See Collier v. Derwinski, 2 Vet. App. 247, 250 (1992). A rating reduction generally must have been supported by the evidence of record at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281 (1992). Disability ratings which are likely to improve or have been continued at the same level for fewer than five years do not qualify for the protections of 38 C.F.R. § 3.344(a) and (b); instead, such ratings are subject to re-examination that may potentially disclose mental or physical improvement, which if shown, will warrant a reduction in rating. See 38 C.F.R. § 3.344(c). In this case, as stated above, the Veteran was awarded a 50 percent disability rating effective February 11, 2011, which was reduced to a 10 percent rating effective April 1, 2015. Accordingly, the Veteran's 50 percent disability rating had been in effect for fewer than five years, and therefore, his 50 percent rating is not subject to the heightened protections of 38 C.F.R. § 3.344 (a) and (b). See Brown, 5 Vet. App. at 418-19. Nevertheless, no rating reduction may be implemented unless a preponderance of the evidence of record reflects not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability of the veteran to function under the ordinary conditions of life and work. See id. at 420-21. Where an approximate balance of positive and negative evidence regarding any material issue exists, all reasonable doubt shall be resolved in favor of the Veteran, which requires that a rating reduction must be supported by a preponderance of the evidence. See 38 U.S.C. § 5107(a). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence of record indicates fluctuations in the severity of symptoms during the course of the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran's service-connected allergic rhinosinusitis is currently rated as 10 percent disabling under the criteria of Diagnostic Code 6510 for sinusitis, which directs that sinusitis is properly evaluated under the General Rating Formula for Sinusitis, which provides as follows: (1) a 50 percent evaluation is warranted where the evidence of record indicates radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries; (2) a 30 percent evaluation is warranted where the evidence of record reflects 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; (3) a 10 percent evaluation is warranted where the evidence of record reflects 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; and (4) a noncompensable evaluation is warranted where the evidence of record reflects chronic maxillary sinusitis detected by X-ray only. See 38 C.F.R. § 4.97, General Rating Formula for Sinusitis for Diagnostic Codes 6510 through 6514. An incapacitating episode of sinusitis is defined as an episode requiring bed rest and treatment by a physician. See id., Note 1. The Veteran contends that because the symptoms of his service-connected allergic rhinosinusitis have not actually improved, but have instead worsened, the January 2015 rating decision improperly reduced his evaluation from 50 percent to 10 percent, and his 50 percent disability rating should be restored. After careful consideration of the evidence of record, the Board finds that, during the period on appeal from February 11, 2011, to April 1, 2015, a preponderance of the evidence of record does not demonstrate actual improvement in the Veteran's service-connected allergic rhinosinusitis and in the Veteran's ability to function under the ordinary conditions of life and work, and therefore, the restoration of the 50 percent evaluation for the Veteran's service-connected allergic rhinosinusitis is warranted in this case. See Brown, 5 Vet. App. at 418-19. In March 2011, the Veteran was afforded a VA examination which culminated in a report finding that the Veteran's service-connected allergic rhinosinusitis onset in 2000 and manifests the following symptoms: headaches occurring one to six times per week; sinus pain; constant difficulty breathing; hoarseness; frequent nasal congestion; post-nasal drainage with shocking sensation; and frontal sinus crusting. The March 2011 VA examination report further indicated as follows: the Veteran reported that his sinus condition has become progressively worse since onset; he was diagnosed with septal deviation and chronic recurrent tonsillitis; his soft palate was removed during his June 2001 VA septoplasty; his prescription medications to treat his sinus symptoms include loratadine (Claritin) and flunisonide nasal spray; and he is currently unemployed. In August 2013, the Veteran was afforded a second VA examination which culminated in a report indicating that the Veteran reported as follows: he continues to suffer from frontal sinus pain; his nasal congestion has become progressively worse; he feels he is having greater difficulty breathing through his nose; the post-nasal drip from his nasal congestion causes him to cough as he feels an irritation at the back of his throat; and his medications, to include nasal sprays and other medications do not alleviate his symptoms. The August 2013 VA examination report further concludes that the Veteran's service-connected allergic rhinosinusitis does not impact his ability to work. As stated above, in December 2014, the Veteran was afforded his third and most recent VA examination which culminated in a report finding as follows: (1) the Veteran's November 2014 VA treatment records documenting his most recent allergy appointment indicate as follows: (a) the Veteran has a history of vasomotor rhinitis and chronic dyspnea; (b) during his last VA medical visit, his prescription medication (flunisolide) was continued and nasal cromolyn was added, which has helped very little to alleviate his symptoms; (c) his primary symptoms involve nasal congestion and dyspnea; (d) his March 2014 CT scan was normal; (e) he has a history of uvuloplasty and septoplasty; (f) he has also been prescribed nasal Atrovent and hydroxyzine; and (g) the Veteran reported to his VA providers that his sinusitis symptoms are not improving and he continues to feel pressure in the sinuses; (2) the Veteran has a diagnosis of rhinitis which results in greater than 50 percent of obstruction of the nasal passage on both sides; (3) the Veteran has permanent hypertrophy of the nasal turbinates; and (4) the Veteran's allergic rhinosinusitis has a negative impact on his ability to work, as it results in very poor endurance due to shortness of breath. As stated above, in June 2021, the Veteran testified at a Board hearing before the undersigned contending that his allergic rhinosinusitis has continued to worsen since its onset and manifests the following symptoms: nasal sores; nasal polyps; excessive drainage and mucus that cannot be stopped; crustiness; bleeding; bilateral blockage of sinuses/nasal passages; and choking from nasal drainage and mucus. In addition, the Veteran further testified that the December 2014 VA examination was inadequate due to the VA examiner's refusal to consider all of the Veteran's current sinus symptoms he suffered from three to four flareups during each period requiring prescription antibiotics. The Veteran also testified that his prescription medications have been increased to include the following: alopurinol; an alprostadil (intracranial nasal) injection every week; cetirizine (Zyrtec) every day, and cromalin sodium nasal spray. The Board finds that the Veteran is competent to describe the symptoms of his current allergic rhinosinusitis, including his pain, headaches, nasal congestion, excessive drainage, crusting, bleeding, nasal blockages, difficulty breathing, and choking on mucus, as well as the scope and extent of the VA examination and the increase in his prescription medication. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the Board finds the Veteran's statements to be consistent with and throughout the record, including the findings of the relevant VA examination reports of record. In particular, the Board notes that the December 2014 VA examination report concedes that the Veteran's allergic rhinosinusitis has progressed since his prior VA examinations as follows: (1) his sinus condition now results in a greater than 50 percent obstruction of his bilateral nasal passage; (2) the Veteran has permanent hypertrophy of the nasal turbinates; and (3) the Veteran's allergic rhinosinusitis now has an impact on his ability to work, as it results in very poor endurance due to shortness of breath. Accordingly, in light of the foregoing and after careful review of the relevant evidence of record, the Board finds that a preponderance of the evidence does not support a reduction in the Veteran's disability rating from 50 percent to 10 percent, as the Veteran's competent lay statements and the medical evidence of record indicates that he continues to suffer from the same symptoms reflected in the March 2011 VA examination report, including sinus pain, frequent headaches, frequent nasal congestion, post-nasal drainage, and crusting. Moreover, the Veteran's sinus symptoms actually appear to have worsened over the course of the period on appeal, as indicated in December 2014 VA examination report conceding that the Veteran's allergic rhinosinusitis now results in a greater than 50 percent obstruction of his bilateral nasal passage, permanent hypertrophy of the nasal turbinates, and results in a negative impact on his ability to work. Therefore, in light of the foregoing, the Board finds that a restoration of the Veteran's 50 percent disability rating is warranted in this case, because a preponderance of the evidence of record does not demonstrate actual improvement in the Veteran's allergic rhinosinusitis or in the Veteran's ability to function under the ordinary conditions of life and work at the time of the January 2015 rating decision. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath, 1 Vet. App. at 593. In addition, the Board is not required to address additional issues unless specifically raised by the Veteran or reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Accordingly, in light the foregoing, the Board finds that the reduction of the Veteran's disability rating from 50 percent to 10 percent was improper, and therefore, a restoration of a 50 percent disability rating for the Veteran's service-connected allergic rhinosinusitis is warranted. See Brown, 5 Vet. App. at 420. REASONS FOR REMAND Entitlement to disability rating based upon individual employability (TDIU) due to the Veteran's service-connected disabilities is remanded. As stated above, the Board recognizes that where a veteran seeking an increased disability rating submits evidence of unemployability, the veteran's entitlement to a total disability based on individual unemployability (TDIU) must be considered as an element of the underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. § 4.16. In this case, the evidence of record indicates that the Veteran is currently unemployed; therefore, entitlement to a TDIU must be considered. However, further development of the Veteran's entitlement to a TDIU is necessary. See Rice, 22 Vet. App. at 453. Thus, upon remand, the severity of the Veteran's service-connected disabilities, his employment history, his education and training, and all other factors having a bearing on the matter must be developed and considered. Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Send the Veteran a VCAA notice for a TDIU and any related development (such as a VA Form 21-8940). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.