Citation Nr: 21040156 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-53 333 DATE: July 2, 2021 ORDER Entitlement to a restoration of 30 percent disability rating for allergic rhinitis is granted. Entitlement to a disability rating in excess of 10 percent for allergic rhinitis is dismissed as moot. FINDINGS OF FACT 1. In a November 2016 rating decision, the RO reduced the Veteran's disability rating for her allergic rhinitis from 30 percent to 0 percent, effective February 01, 2017. 2. The competent and probative evidence does not demonstrate that the Veteran experienced improvement in the ordinary conditions of life, and the RO failed to make those findings in its decision to reduce the Veteran's rating. 3. The Veteran is currently in receipt of the highest rating allowed under DC 6522 for allergic rhinitis for the entire period on appeal. CONCLUSIONS OF LAW 1. The rating reduction for allergic rhinitis, from 30 percent disabling to 0 percent disabling, effective February 01, 2017, was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344 2. The criteria for dismissal of entitlement to a disability rating in excess of 10 percent for allergic rhinitis as moot, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 2002 to August 2006. For her meritorious service, the Veteran was awarded (among other decorations) the Air Force Achievement Medal with 2 Bronze Oak Leaf Clusters. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of restoration of a 30 percent disability rating for allergic rhinitis was previously denied by the Board in June 2019. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) in March 2020. The Court subsequently remanded the June 2019 Board decision in December 2020 for adjudication consistent with the Court's December 2020 decision. The issue of entitlement to a compensable rating was remanded by the Board in June 2019 for additional development. Prior to the promulgation of a decision in the instant appeal, the RO granted a rating of 10 percent for the Veteran's service-connected rhinitis in an October 2020 rating decision. As this is not considered a full grant of benefits, this issue is still before the Board for adjudication. 1. Entitlement to a restoration of a 30 percent disability rating for allergic rhinitis The Veteran asserts that the reduction of her 30 percent disability rating to a noncompensable rating for her service-connected allergic rhinitis was improper. The reduction of a rating has certain procedural requirements that must be followed by the RO if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105(e). Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344(a), (b); see 38 C.F.R. § 3.343. The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In a July 2007 rating decision, the Veteran was granted service connection for allergic rhinitis with a 30 percent rating effective August 12, 2006. Under Diagnostic Code (DC) 6522, a 10 percent evaluation is warranted for rhinitis without nasal polyps, but with a greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. The Veteran appeared for a VA examination in March 2014 to determine the current severity of her allergic rhinitis. The Veteran reported that she had one non-incapacitating episode of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the last 12 months. She also reported that she did not have any incapacitating episodes of sinusitis requiring prolonged treatment. The examiner noted that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. The examiner also reported that there was no permanent hypertrophy of the nasal turbines and no nasal polyps. The RO in an October 2014 rating decision, continued the Veteran's 30 percent rating for allergic rhinitis but considered it temporary and subject to future examination. The Veteran underwent another VA examination in May 2016 for her allergic rhinitis. The examiner reported that the date of onset of the Veteran's symptoms was 2003. The Veteran reported severe stuffiness, which caused headaches, runny nose, and itch eyes. There were also reports of sinus infections. The Veteran stated that her condition has stayed the same. The Veteran reported that she has not had non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the last 12 months. She also reported that she did not have any incapacitating episodes of sinusitis requiring prolonged treatment. The examiner reported that the obstruction of the nasal passage on both sides due to rhinitis was not greater than 50 percent. The examiner also reported permanent hypertrophy of the nasal turbinates and no nasal polyps. In a June 2016 rating decision, the RO proposed a reduction of the Veteran's evaluation for allergic rhinitis from 30 percent to a noncompensable rating and gave the Veteran 60 days to furnish evidence or a rebuttal in opposition to the reduction. The RO subsequently implemented the reduction in a November 2016 rating decision. The Veteran submitted a letter from her private treating physician in November 2017. The physician stated that the Veteran has chronic rhinosinusitis, nasal polyps, and extrinsic asthma. The physician also reported that according to June 2016 testing, the Veteran was allergic to grass, trees, weeds, mold, dust mites, cockroaches, cats, and dogs. The physician stated that upon examination (which occurred on the date the letter was written), the Veteran had significant nasal obstruction with greater than 75 percent obstruction bilaterally. This letter was corroborated by allergy test results received by the VA in July 2016; and by a November 2017 private examination. The Veteran appeared for another VA examination in January 2020. The Veteran reported that she has not had non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the last 12 months. She also reported that she did not have any incapacitating episodes of sinusitis requiring prolonged treatment. The examiner noted that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. The examiner also reported that there was no permanent hypertrophy of the nasal turbines and no nasal polyps. The RO subsequently gave the Veteran a 10 percent rating for her allergic rhinitis in an October 2020 rating decision. Upon review of all of the pertinent evidence of record, the Board finds that the reduction of the Veteran's evaluation for allergic rhinitis from 30 percent to zero percent was improper. While the VA examinations of record suggest a change in the Veteran's condition, private treatment records (to include the November 2017 letter from the Veteran's private treating physician) document that the Veteran's condition had not improved and she still experiences the symptomatology considered by the 30 percent rating under DC 6522. Due to the conflicting medical evidence, the Board finds that the evidence of record does not reflect an actual change in the Veteran's condition. The Veteran has also consistently stated throughout the record that her condition has not improved despite the findings in the VA examinations. Moreover, the RO failed to demonstrate how any improvement in the Veteran's allergic rhinitis actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Notwithstanding the findings in the VA examinations of record, the Veteran was still subject to sinus infections, stuffiness, headaches, allergies, and itchy eyes and nose during the entire period on appeal. Thus, the Board finds that the evidence of record does not reflect an improvement in the Veteran's ability to function under the ordinary condition of life and work. As such, the reduction of the Veteran's disability rating for allergic rhinitis from 30 percent to a noncompensable rating was improper. 2. Entitlement to a disability rating in excess of 10 percent for allergic rhinitis The Veteran asserts that she is entitled to a disability rating in excess of 10 percent for her allergic rhinitis. However, this assertion was made before restoration of her 30 percent rating for allergic rhinitis. The Veteran is currently in receipt of the highest rating allotted for allergic rhinitis under DC 6522, and there is no contention of or evidence showing symptoms not covered by the rating criteria; thus, this issue on appeal is dismissed as moot. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.