Citation Nr: 1709989 Decision Date: 03/30/17 Archive Date: 04/11/17 DOCKET NO. 12-21 177A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the reduction of the evaluation for migraine headaches, from 30 percent to noncompensably disabling (0 percent) was proper. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to April 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The claim was subsequently transferred to the Waco, Texas RO. In a December 2010 rating decision, the RO decreased the Veteran's service-connected migraine headaches rating from 30 percent to 0 percent, effective March 1, 2011. In December 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. FINDINGS OF FACT 1. In December 2010, the RO reduced the disability evaluation for the Veteran's service-connected migraine headaches from 30 percent to noncompensably disabling, effective March 1, 2011. 2. The evidence at the time of the December 2010 rating decision did not demonstrate an improvement in the Veteran's work and life conditions. CONCLUSION OF LAW The reduction of the rating for the Veteran's service-connected migraine headaches from 30 percent to noncompensably disabling was improper; the criteria for a restoration of a 30 percent disability rating for migraine headaches from March 1, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105 (e), 3.159, 3.344, 4.124a Diagnostic Code 8100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155 (West 2014). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2015); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Procedurally, where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that she has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, 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 Veteran expires. 38 C.F.R. § 3.105(e). The procedural requirements for reduction have been satisfied in this case. A July 2010 reduction proposal was accompanied by a notice letter, which apprised the Veteran and her representative of the Veteran's right to request a hearing and informed the Veteran that her benefits would be reduced if she failed to submit additional evidence within 60 days. No additional evidence or hearing request was submitted during the 60-day period prior to the reduction taking effect. As such, the proper procedures were followed. With respect to VA's duty to assist, there is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records and VA treatment records have been associated with the claims file, and there is no indication that additional records are outstanding. In regard to the Veteran's evaluation of her migraine instability, VA provided examinations in February 2009 and June 2010, which the RO used as a basis in reducing the Veteran's rating. The adequacy of these examinations will be addressed below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As to the propriety of the reduction, 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 certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). Where a Veteran's schedular rating has been both stable and continuous for five 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). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Here, the prior 30 percent disability rating for the Veteran's migraine headaches was in effect for less than five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply in this case. However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. 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 Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344 (c). In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A February 2009 VA examination reflects the Veteran experiencing migraines headaches occurring weekly for a usual duration of one hour. The examination reflects half of the migraine attacks are prostrating. The examination further reflects the Veteran's migraines having moderate effects on the Veteran's usual daily activities. Based on the above examination, the Veteran was service-connected for her migraine headaches at 30 percent disabling effective April 17, 2008. The Veteran was provided a VA examination in June 2010. The examination report noted the Veteran's migraine attacks occurring weekly, lasting one hour. The examination report further reflects that the Veteran is able to maintain normal activity during the migraine headaches. Lastly, the examination report reflects the Veteran's migraine headaches have a mild effect on her usual occupation and daily activities. The RO subsequently reduced the Veteran's migraine headaches to noncompensably disabling, effective March 1, 2011. A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). While the June 2010 VA examination reflects the Veteran's migraine headaches had some improvement (no evidence of prostrating), the examination report does not reflect an improvement under ordinary conditions of life and work, a necessary element. Specifically, the February 2009 VA examination noted the effect the Veteran's migraine headaches had on specific activities, such as: chores; shopping; exercise; sports; recreation; feeding; grooming; dressing; and bathing. Additionally, the February 2009 examination noted the Veteran's migraine headaches resulting in decreased concentration, vision difficulty, pain, increased tardiness to work, and increased absenteeism from work. However, the June 2010 examination failed to inquiry about whether those specific activities have improved. Rather, the June 2010 examination simply provided a general assessment that the Veteran's headaches have a mild effect on her usual occupational and daily activities. Based on the above, the evidence at the time of the December 2010 reduction does not reflect an actual improvement in the Veteran's work and life conditions. As such, the Board finds that the December 2010 reduction to be improper. ORDER A 30 percent disability evaluation for the Veteran's migraine headaches is restored, effective March 1, 2011, the date of the reduction. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs