Citation Nr: 1318883 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-18 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to restoration of a 50 percent rating for migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Gretna, Louisiana. The RO in New Orleans, Louisiana is currently the Agency of Original Jurisdiction. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT A comparison of the evidence upon which a 50 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 10 percent does not reflect improvement in the Veteran's service-connected migraine headaches. CONCLUSION OF LAW The 50 percent disability rating for migraine headaches was not properly reduced to 10 percent. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability 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 therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation 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) (2012). In this case, the Veteran disagrees with a March 2007 rating decision that reduced the rating for her service-connected migraine headaches from 50 percent disabling to 10 percent disabling effective July 1, 2007. She contends that symptoms associated with her disability have not improved and that the reduction to a 10 percent rating from a 50 percent rating was not warranted. A copy of a rating decision proposing to reduce the Veteran's migraine headache disability from 50 percent disabling to 10 percent disabling was sent to the Veteran in November 2005. A letter sent with the rating decision informed the Veteran that she would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the 50 percent level and that she could request a predetermination hearing. In response, the Veteran submitted a statement in December 2005, in which she requested a hearing. A hearing was held at the RO in December 2006. Thus, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. As such, the RO's reduction of the Veteran's migraine headaches was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. The Board notes that the 50 percent rating for migraine headaches had been in effect since June 6, 2003. Because the rating was in effect less than five years, the provisions of 38 C.F.R. § 3.344 (a)(b) pertaining to stabilized ratings are not applicable. See 38 C.F.R. § 3.344(c) (2012) (reexaminations disclosing improvement in disabilities that have not become stabilized will warrant reduction in the rating). The RO has evaluated the service-connected migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assigned for migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic adaptability. The RO's primary basis for the 50 percent rating for the Veteran's service-connected migraine headaches was a September 2003 VA examination report. At that examination, the Veteran described her headaches as pressure type pain that started as tightness around the back of the neck or at the frontal region. The headaches occurred 3 times a week, lasted 3 to 4 hours and were relieved by lying down in a dark room away from noise. She denied any nausea, vomiting or neurological symptoms. There were no precipitating factors. The RO's basis for proposing the reduction was primarily a June 2005 VA examination report. That report shows that the Veteran described the headaches as bilateral, pressure-like and associated with sensitivity to light and sound. She described the severity of the headaches as 10/10, lasting from one hour to a few hours and occurring 3 to 4 times a week. The headaches were relieved by lying down in a dark room. Medications used to help treat the headaches included bulalbital, Advil and Tylenol. She had also previously taken amitryptyline but she had run out this medication and had not had the script refilled. She stated that during a migraine, she is unable to engage in ordinary activity and with great discomfort she could engage in limited activity. The examiner noted that the Veteran had significant functional loss due to this neurological disorder. However, the examiner felt that the headaches were under treated and that further evaluation was warranted after the Veteran was placed on appropriate prophylactic therapy. At a December 2006 hearing, the Veteran reported that the frequency of her headaches had increased and that she was now having them every day. She stated that she was currently taking propranolol for treatment of the headaches and that she sometimes needed to take her medication twice a day. In consideration of this information, the Board finds that a comparison of the evidence upon which the 50 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 10 percent does not reflect improvement in the Veteran's service-connected migraine headaches. In fact, the June 2005 VA examination report reflects an increase in frequency and duration of the Veteran's migraine headaches. Notably, the June 2005 VA examiner indicated that the Veteran suffered from significant functional loss due to the severity of her migraine headaches. While the examiner also indicated that the headaches were under treated, there is no indication that the headaches had improved with subsequent medication. In this respect, the Veteran testified at the December 2006 hearing that she experienced headaches on a daily basis despite taking propranolol. The Veteran is competent to report her experiences. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds her statements credible. Moreover, subsequently received medical evidence shows that the Veteran's migraine headache disability has not improved. In consideration of the foregoing, the Board finds that the criteria for a rating reduction are not met. Accordingly, restoration of a 50 percent rating for migraine headaches is warranted effective July 1, 2007. ORDER Restoration of a rating of 50 percent for migraine headaches from July 1, 2007, is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs