Citation Nr: 18131209
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-24 611A
DATE:	August 31, 2018
ORDER
The reduction in the rating for the Veteran’s sinusitis was not proper, and the 30 percent rating is restored.
FINDINGS OF FACT
1. An August 2012 rating decision reduced the evaluation for the Veteran’s sinusitis from 30 percent to 10 percent effective November 1, 2012, after meeting all due process requirements in executing such a reduction.
2. The Veteran’s sinusitis did not show actual improvement under the normal circumstances of life and work.
CONCLUSION OF LAW
The reduction in the rating for the Veteran’s sinusitis from 30 percent to 10 percent was not proper, and the 30 percent rating is restored effective November 1, 2012.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 3.344, 4.97 Diagnostic Code (DC) 6513. 
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty in the United States Army from November 1964 to November 1968, to include service in Vietnam.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  
The Veteran contends that the reduction of his rating for sinusitis was improper.  See May 2013 notice of disagreement; July 2014 VA Form 9; July 2018 Informal Hearing Presentation; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
In May 2012, the RO proposed to reduce the Veteran’s evaluation for sinusitis from 30 percent to 10 percent.  The reduction was accomplished in an August 2012 rating decision, and made effective November 1, 2012.  The RO complied with the procedural safeguards regarding the manner which the Veteran was given notice of and the implementation of the reduction.  See 38 C.F.R. § 3.105. 
A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 349 (2000).  VA has the burden of establishing that the disability has improved.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated).  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).
The Veteran’s sinusitis is evaluated under 38 C.F.R. § 4.97, DC 6513.  Under this DC, a noncompensable evaluation is warranted when sinusitis is detected by X-ray only.  A 10 percent evaluation is warranted for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting.  A 30 percent evaluation is required when there are three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting.  A 50 percent evaluation 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 Note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.
The previously assigned 30 percent evaluation was awarded by an April 2010 rating decision and made effective February 16, 2010.  The April 2010 rating decision was based upon an April 2010 VA examination, which showed non-incapacitating episodes of sinusitis including headaches, purulent drainage and sinus pain which occurred near constantly and lasted seven to fourteen days, and no incapacitating episodes.
The reduction was based upon a May 2012 VA examination, at which the Veteran reported significant mucoid post nasal drainage every morning and requiring antibiotics two times per year.  The VA examination report inconsistently notes two non-incapacitating episodes of sinusitis in the last 12 months characterized by headaches, pain, and purulent discharge or crusting and no incapacitating episodes. 
While the Board acknowledges that the May 2012 VA examination indicates some improvement in the Veteran’s condition, the Board finds that this does not represent sustained improvement.  In his July 2014 VA Form 9, the Veteran contends that he has been treated for sinusitis for several years and has been prescribed various antibiotics, yet his sinus symptoms returned, and he has continuous headaches and sinus drainage with crusting.  He also reports that his constant headache turns to a very bad migraine five to six times per year.  Id.   During the appeal period, VA treatment records continue to show sinus congestion and discomfort.  The Veteran contends that he stopped obtaining VA treatment every time he has an episode of sinusitis as the treatment was not helping him.  See May 2013 notice of disagreement.  Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s sinusitis under the ordinary conditions of life and work.  As such, the 30 percent rating for sinusitis is restored effective November 1, 2012.
 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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