Reduction Due To Va's Cue On A Prior Initial Decision

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http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files4/1039219.txt

Allergic Rhinitis

In the July 2008 rating decision on appeal, the RO found that the

August 2004 rating decision contained CUE in its award of a 30

percent evaluation for allergic rhinitis. The RO concluded that

the Veteran clearly and unmistakably did not meet the criteria

for a grant of a 30 percent rating for allergic rhinitis in

August 2004, and the rating was reduced to noncompensably

disabling, effective October 1, 2008.

The August 2004 rating decision rated the Veteran's allergic

rhinitis as 30 percent disabling under Diagnostic Code 6522

pertaining to allergic or vasomotor rhinitis. A maximum 30

percent evaluation is warranted under this diagnostic code with

the presence of polyps and a 10 percent evaluation is assigned

when there are no polyps but a greater than 50 percent

obstruction of the nasal passage on both sides or complete

obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6522

(2003).

At the time of the August 2004 rating decision, the evidence of

record included the Veteran's service treatment records and the

report of a January 2004 VA examination. The service treatment

records showed diagnoses and treatment for allergic rhinitis

since May 1997, a finding of a deviated septum in May 2000, and

the removal of nasal polyps in June 2001 and January 2003. Upon

VA examination in January 2004, the Veteran had no nasal polyps

and reported that his symptoms were very well-controlled with

medication. He had not experienced an exacerbation of symptoms

in 18 months.

The Board finds that the RO's reduction of the Veteran's allergic

rhinitis to noncompensably disabling based on a finding of CUE in

the August 2004 rating decision was proper. The evidence clearly

did not establish the presence of any nasal polyps during the

applicable claims period, and there was no indication or reports

of nasal obstruction. In fact, the Veteran did not complain of

any current symptoms during the January 2004 VA examination, and

specifically stated that his disability did very well on

medication. The Veteran clearly and unmistakably did not

manifest any symptomatology associated with a compensable

evaluation under Diagnostic Code 6522, and the assignment of an

initial 30 percent rating in August 2004 was the result of an

incorrect application of the regulatory provisions extant at the

time. Therefore, the finding of CUE in the August 2004 rating

decision and the reduction of the Veteran's disability in July

2008 were proper and the claim is denied.