Citation Nr: A25035132 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210624-167894 DATE: April 16, 2025 ORDER The rating reduction for sinusitis from 30 percent to 10 percent, effective August 10, 2020, was not proper; restoration of the 30 percent rating from that date is granted. Entitlement to an increased rating in excess of 30 percent for sinusitis is denied. FINDINGS OF FACT 1. The evidence of record at the time of the August 2020 rating decision, which reduced the evaluation of sinusitis from 30 percent to 10 percent, effective August 10, 2020, did not demonstrate an actual improvement in sinusitis reflecting improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. Throughout the appeal period, the weight of the probative evidence fails to demonstrate that the Veteran's sinusitis has been manifested by radical sinus 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. CONCLUSIONS OF LAW 1. The criteria for restoration of the 30 percent rating for sinusitis, effective August 10, 2020, have been met. 38 U.S.C. §§ 1155, 5112, 5107; 38 C.F.R. §§ 3.102, 3.105(e); 3.334, 4.97, Diagnostic Code (DC) 6513. 2. The criteria for a rating in excess of 30 percent for sinusitis have not been met at any time during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, DC 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1989 to March 1990, and from February 1991 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) from a February 2021 Higher Level Review rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 rating decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Appellant or representative with, or within 90 days from receipt of, the VA Form 10182. If evidence was submitted either (1) during the period after the AOJ issued the August 2020 rating decision and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. The rating reduction for sinusitis from 30 percent to 10 percent, effective August 10, 2020, was not proper; restoration of the 30 percent rating from that date is granted. Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Generally, when an AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this regard, 38 C.F.R. § 3.105(e) sets forth certain procedural requirements for reductions in disability compensation ratings. Although generally a reduction is void ab initio if the AOJ reduces a veteran's disability rating without following these requirements, see Kitchens v. Brown, 7 Vet. App. 320, 325 (1995), where a reduced rating would not result in a decrease or discontinuance of the current compensation payments, there are no procedural requirements. VAOPGCPREC 71-91 (Nov. 1991). Prior to the August 2020 rating decision, which implemented the rating reduction for sinusitis, the Veteran's combined rating for her service-connected disabilities was 70 percent. Following the implementation of the rating decision, which also granted service connection for major depressive disorder, her combined rating was increased to 80 percent. If a rating decision reduces the rating for a disability, but there is no corresponding reduction in the Veteran's combined disability rating, the notice mandated in 38 C.F.R. § 3.105(e) is not required. VAOPGCPREC 71-91 (Nov. 7, 1991). Here, while there was a reduction in the rating for the Veteran's sinusitis, the reduction did not result in a decrease in the Veteran's overall combined compensation. Therefore, her monthly compensation was not decreased. Thus, the Board finds that compliance with the notice provisions of 38 C.F.R. § 3.105(e) was not required. For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the AOJ, in its August 2020 rating decision, reduced the rating for the Veteran's sinusitis from 30 to 10 percent, effective August 10, 2020. The 30 percent rating had been assigned in an August 2017 rating decision, effective May 3, 2017. Thus, the 30 percent rating had been in effect for less than five years at the time of the AOJ's reduction. Accordingly, the provisions under 38 C.F.R. § 3.344(a) and (b) do not apply in this case. As to disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined 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. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Based on a review of the record, the Board finds that the reduction effectuated by the August 2020 rating decision was not proper. Specifically, the Board finds that the evidence does not support a finding that the Veteran's sinusitis has improved to the point that she is now better able to function under the ordinary conditions of life and work. See 38 C.F.R. § 3.344. In this regard, at the June 2017 VA examination, which formed the basis of the 30 percent rating for sinusitis, the examiner noted that the sinusitis resulted in symptoms of headaches, post-nasal drip, four non-incapacitating episodes per year, and three or more incapacitating episodes per year. Similarly, at the August 2020 VA examination, which was cited by the AOJ as evidence supporting the reduction, the Veteran reported that she still experienced symptoms of post-nasal drip and headaches, as well as four non-incapacitating episodes per year, while the incapacitating episodes per year had dropped to one. However, the Veteran also reported new symptoms of sinus pressure, nose congestion, purulent discharge, crusting, and pain and tenderness of affected sinus. Further, the June 2017 examiner found that no sinus was directly affected, while the August 2020 examiner noted the Veteran's maxillary and frontal sinuses were affected. Additionally, the June 2017 examiner found that the Veteran's sinusitis did not affect her ability to work, while the August 2020 examiner found that it does affect her ability to work, noting the Veteran's lay statements that she has to leave work frequently due to headaches and scents which exacerbate her sinusitis. Accordingly, in this case, the Board finds that the most recent examination of the Veteran's sinusitis shows relevant symptoms which are substantially similar to those at the time of the initial grant of a 30 percent rating for sinusitis and does not reveal that there has been improvement actually reflecting an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Board therefore must conclude that the reduction in rating from 30 percent to 10 percent was improper, and that restoration of the 30 percent rating, from August 10, 2020, is warranted. 38 C.F.R. § 3.344(c); See Dofflemyer, 2 Vet. App. at 251-252. 2. Entitlement to an increased rating in excess of 30 percent for sinusitis is denied. As noted above, the Veteran's rating reduction stemmed from an increased rating claim for her sinusitis with headaches. See January 2020 VA Form 21-526EZ. The AOJ has found that the Veteran's headaches are a symptom of her service-connected sinusitis and has granted service connection for "sinusitis to include headaches." The Veteran was originally granted service connection for sinusitis in an August 2000 rating decision. At that time, this disability was assigned a 10 percent rating effective July 14, 1999. The Veteran's rating for sinusitis was increased to 30 percent in an August 2017 rating decision, effective May 3, 2017. Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the weight of the evidence is against the claim such that the evidence is not in relative equipoise, the claim must be denied. The Veteran's sinusitis is rated under DC 6513. Under DC 6513, sinusitis is noncompensable when detected by x-ray only, with no compensable symptoms. 38 C.F.R. § 4.97. A 10 percent rating is warranted if the condition is manifested by one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or by three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted if the condition is manifested by three or more incapacitating episodes per year requiring prolonged antibiotic treatment; or by more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating is warranted if there is chronic osteomyelitis following radical surgery; or near constant sinusitis characterized by headaches, pain, and tenderness of an affected sinus, and purulent discharge or crusting after repeated surgeries. For VA purposes, an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, Note. The August 2020 VA examination found the Veteran's sinusitis affected the maxillary and frontal sinuses, and involved headaches, pain and tenderness of affected sinuses, purulent discharge, crusting, and episodes of sinusitis. These episodes of sinusitis included four non-incapacitating and one incapacitating episode in the prior year. The examiner did not find that the Veteran experienced near constant sinusitis. The examiner noted that the Veteran had undergone endoscopic sinus surgery and repeated sinus-related surgical procedures, but had not undergone any radical surgeries, nor experienced chronic osteomyelitis. After review of all the pertinent evidence of record the Board finds that neither the medical nor lay evidence of record establishes that the Veteran's sinusitis has manifested by symptoms that meet the criteria for a rating in excess of 30 percent at any time during the period on appeal. The Board finds that the Veteran's sinusitis has not manifested by chronic osteomyelitis following radical surgery or near constant sinusitis characterized by headaches, pain, and tenderness of an affected sinus, and purulent discharge or crusting after repeated surgeries. Accordingly, the criteria for a rating higher than 30 percent are not met or more closely approximated. In deciding the Veteran's claim for increase, the Board has considered her lay statements that her service-connected disability is more severe than currently evaluated. She is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is not, however, competent to identify a specific level of disability of this disorder according to the appropriate Diagnostic Codes. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the qualified personnel who have treated her during the current appeal, and who have rendered pertinent opinions in conjunction with the evaluations. The competent medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Accordingly, the appeal for a rating greater than 30 percent disabling for sinusitis is denied. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for an increased rating for sinusitis. As the evidence of record persuasively weighs against an increased rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107. 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.th 776, 781-782 (Fed. Cir. 2021). M. Schlickenmaier Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cooper, Jacob A. 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.