Citation Nr: 1750005 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 13-15 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to restoration of a 50 percent rating for service-connected migraines from July 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from September 17, 2003 to February 10, 2004, from March 22, 2004 to September30, 2004, from November 22, 2004 to September 30, 2005 and from May 30, 2006 to September 30, 2007. This appeal comes before the Board of Veterans' Appeals from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In a February 2010 rating decision, the RO increased the Veteran's disability rating for service-connected migraines from 30 to 50 percent. On review of the Veteran's file in May 2012, the RO proposed to decrease the Veteran's disability rating to 30 percent then executed its proposal in April 2013. The Veteran filed a timely notice of appeal and declined a hearing. Thus, this issue is properly before the Board. Other issues that are currently pending and awaiting hearing will not be addressed in this decision. In this decision, the Board is granting restoration of a 50 percent rating for the Veteran's migraines, from July 1, 2013. FINDING OF FACT The evidence does not show that the Veteran's migraines had significantly improved under the ordinary conditions of work and life by April 2013. CONCLUSION OF LAW The reduction of the Veteran's migraine rating from 50 percent to 30 percent was not proper. The rating is restored. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code (DC) 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Reduction in Rating: Migraines The Veteran contends that the reduction of her rating from 50 to 30 percent for service-connected migraines was improper and that the 50 percent rating should be restored. The Board agrees, and will restore the Veteran's 50 percent rating. The Board finds the evidence on which the reduction was based does not support the reduction. In these types of cases, VA must establish, by a preponderance of evidence, that the rating reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421; see also Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) ("Thus, it is well established in the Court's case law that VA cannot reduce a veteran's disability evaluation without first finding, inter alia, that the veteran's service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work.") The only evidence showing an improvement in the Veteran's migraines is the lack of clinical visits for flare-ups. The Veteran reportedly experienced characteristic prostrating attacks and constant, bilateral head pain that increased with physical activity. The original basis for the 30 percent rating was headaches of sudden onset which were usually left sided and accompanied by nausea, phono-and photophobia with characteristic prostrating attacks occurring on an average of once a month. See March 2008 Rating Decision. The Veteran's rating was increased in February 2010 when her VA medical records showed five clinical visits for migraines in six months with low function and lack of employment. The reduction was based on the results of an April 2012 VA General Medical Examination. On examination, the Veteran reported migraine headaches that caused nausea and sensitivity to light and sound and lasted for a duration of more than two days. She experienced constant, bilateral head pain that increased with physical activity. The Veteran was noted to have characteristic prostrating attacks, but no frequency was noted for the preceding months. The examination explicitly states that it does not elicit the detailed information about specific conditions that is necessary for rating purposes. It is, therefore, not a thorough and adequate examination. Faust, 13 Vet. App. at 349. At the time of her proposed reduction, the Veteran obtained two letters from physicians, explaining that her migraines poorly impact her daily life. The Veteran's migraines were described as debilitating and difficult to control. Her medications were increased to attempt to alleviate the pain of her migraines and the resulting impairment, and the Veteran experimented with Botox for relief. The Veteran's migraines were noted to be "stable" on medication; however, the record does not indicate and the Veteran denies that she was better able to function as her medications changed and increased. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). Further, there has been no finding by a VA examiner that the Veteran is, in fact, better able to function in daily life with regard to her migraines than she was in 2010, when the 50 percent rating was assigned. There is no fair preponderance of the evidencing showing that her migraines significantly improved under the ordinary conditions of work and life, and therefore, the reduction was not proper. Her 50 percent rating is restored. 38 C.F.R. § 3.344(a). ORDER Restoration of a 50 percent rating for service-connected migraines is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs