Citation Nr: 18160479
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 15-11 441
DATE:	December 27, 2018
ORDER
Restoration of the 30 percent rating for service-connected rhinitis with polyps is granted, effective May 1, 2015.
FINDINGS OF FACT
1. The Veteran was in receipt of a 30 percent rating for service-connected rhinitis with polyps from December 10, 1997, to May 1, 2015, a period of more than five years. 
2. The January 2015 rating decision and the April 2015 Statement of the Case both failed to consider the provisions of 38 C.F.R. § 3.344.
CONCLUSION OF LAW
Since the reduction of the rating for service-connected rhinitis with polyps from 30 percent to 0 percent was not in accordance with applicable law and regulations, the criteria for restoration of the 30 percent rating, effective May 1, 2015, are met.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.13. 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Air Force from March 1966 to July 1973 and from November 1973 to June 1986. 
This matter is before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which reduced the rating for the Veteran’s service-connected rhinitis with polyps from 30 percent to 0 percent, effective May 1, 2015.  
Rating Reduction – Rhinitis with polyps
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.  When an agency of original jurisdiction (AOJ) reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).
Initially, where the reduction in 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 will be prepared setting forth all material facts and reasons.  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  If additional evidence is not received within that period, 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.  38 C.F.R. § 3.105 (e).
In an October 2013 rating decision and an October 2013 letter, the RO notified the Veteran of the proposed rating reduction and set forth all material facts and reasons for the reduction.  In the October 2013 letter, the RO instructed the Veteran to submit evidence within 60 days to show that his rating should not be reduced and to request a predetermination hearing, if desired.  The Veteran requested a predetermination hearing and an informal conference was held in January 2015.  In the instant case, the AOJ complied with 38 C.F.R. § 3.105(e) in the October 2013 letter. 
As the RO has met the procedural requirements associated with a reduction, the issue now become whether the reduction was proper based on the evidence of record.  The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344.  Section 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  
In regard to disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application.  See 38 C.F.R. § 3.344 (c).  Where a veteran’s schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation.  38 C.F.R. § 3.344 (a).  Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id.  Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id.  
In considering the propriety of a reduction, VA must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement.  Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).  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, 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.  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).
Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).
In the present case, a November 1999 rating decision granted service connection for rhinitis with polyps, and assigned a 30 percent disability rating under Diagnostic Code 6522, effective, December 10, 1997.  In July 2013 the Veteran filed a claim for an increased rating for his service-connected disability. 
An October 2013 rating decision proposed to reduce the Veteran’s rating for his service-connected rhinitis with polyps from 30 percent to 0 percent based on a January 2005 VA examination and other evidence of record that showed no evidence of polyps or complaints of difficulty breathing through the nose.  Additionally, the October 2013 rating decision explained that the Veteran failed to report to a VA examination, and that the available evidence demonstrated sustained improvement. In November 2013, the Veteran requested a personal hearing and explained that he failed to report to his VA examination because he was not contacted to report to the examination. 
At this point, the Board must consider the propriety of the reduction based upon the evidence or record available to the AOJ/RO at the time the reduction was effectuated.  In a January 2015 rating decision, the AOJ reduced the rating for the Veteran’s service-connected rhinitis with polyps from 30 percent to 0 percent, effective date May 1, 2015, stating that a noncompensable evaluation is assigned unless there is a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 
Because the Veteran’s 30 percent rating had been in effect more than five years at the time of the January 2015 rating decision, 38 C.F.R. § 3.344 (a) and (b) are applicable.  However, the October 2013 notification letter, the January 2015 rating decision, and the April 2015 Statement of the Case all fail to provide notice of, or reflect consideration of, the provisions of 38 C.F.R. § 3.344.  Specifically, the January 2015 rating decision and the April 2015 Statement of the Case fail to address whether the updated VA examination and treatment reports were as full and complete as the examination or records upon which the original rating was established.  Significantly, the January 2015 rating decision does not specifically discuss a VA examination or treatment record demonstrating an improvement in the Veteran’s disability.  Likewise, the April 2015 Statement of the Case merely notes that a January 2015 medical treatment note diagnosed the Veteran with acute sinusitis and that the treatment note did not mention rhinitis with polyps.  
The Board notes that a March 2015 VA examination shows the Veteran does not have nasal polyps, greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, or complete obstruction of the nasal passage on either side due to rhinitis; the requirements to receive a compensable rating under 38 C.F.R. § 4.97.  However, the VA examiner stated that the records are variable as to whether the Veteran’s condition is rhinitis or sinusitis.  Significantly, this examination is not addressed in the April 2015 Statement of the Case; therefore, the Statement of the Case failed to address whether the March 2015 VA examination is as full and complete as the VA examination upon which the original rating was established.  Further, the January 2015 rating decision and the April 2015 Statement of the Case fail to discuss whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344 (a); Kitchens v. Brown, 7 Vet. App. 320 (1995).
The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio as such omissions are error and not in accordance with the law.  See Greyzck, 12 Vet. App. at 292; See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996).  Accordingly, the 30 percent disability rating for the Veteran’s service-connected rhinitis with polyps is restored, effective May 1, 2015.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda Purcell, Law Clerk 

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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