Citation Nr: 18152036 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-40 994 DATE: November 20, 2018 ORDER The reduction to a 30 percent rating for migraine headaches was not proper; restoration of the 50 percent rating effective September 1, 2012 is granted. Entitlement to a disability rating in excess of 50 percent for migraine headaches is denied. FINDINGS OF FACT 1. A March 2010 granted the Veteran a 50 percent rating for migraine headaches, effective from December 3, 2009. 2. A January 12, 2012 rating decision decreased the rating assigned for headache from 50 percent to 30 percent, effective from September 1, 2012. 3. A sustained improvement of the Veteran’s ability to function under the ordinary conditions of life and work as a result of migraine headaches has not been demonstrated. 4. The Veteran is in receipt of the maximum schedular rating assignable for migraine headaches CONCLUSIONS OF LAW 1. The reduction of the rating for the Veteran’s service-connected migraine headaches from 50 percent to 30 percent was not proper; and, the 50 percent rating is restored from September 1, 2012. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8100. 2. The criteria to warrant the assignment of a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to December 2001. This matter comes before the Board from an June 2012 rating decision. On April 17, 2018, the Veteran elected to participate in RAMP, selecting the option for “Higher Level Review.” However, appeals that have been activated by the Board are not eligible for RAMP processing. The issues listed on the front page of this decision were activated by the Board in December 2016, prior to the Veteran’s participation in RAMP. Therefore, the Board will continue with their adjudication pursuant to current appeals procedures. 1. The propriety of the reduction for migraine headaches In January 2012, the RO proposed to reduce the Veteran’s 50 percent rating for his service-connected migraines to 30 percent. This reduction was accomplished in a June 2012 rating decision, effective September 1, 2012. The RO procedurally complied with the procedural safeguards regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Under the provisions of 38 C.F.R. § 3.344 (c), when a disability rating has been in effect for less than five years, as in the present appeal, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. 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 at 420-421. Under Diagnostic Code 8100, a 30 percent rating is assigned form migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent evaluation was awarded for the Veteran’s migraine headaches by a March 2010 rating decision. The award was based on a January 2010 VA examination. At that time, the Veteran reported experiencing headaches on average 4 times a week that last for 1 hour. During these headaches the Veteran described symptoms of nausea, sensitivity to light, and dizziness. He said that he is unable to perform daily tasks during a migraine and must sit in a dark room and take medications. Based on this examination, the January 2010 rating decision granted a 50 percent evaluation for the migraine headaches due to the frequency and severity of the migraine headaches. The Veteran filed a claim for compensation for multiple disabilities in February 2011. One of the listed disabilities was migraine headaches. In conjunction with the claim, he was afforded another VA examination in August 2011. At this examination, the Veteran reported experiencing migraine headaches twice a day and that each headache lasted 2 hours. The Veteran reported the pain level during a migraine was 10 on a scale of 1 – 10 with 10 being the highest level. The symptoms reported were pain, nausea, and photophobia which were constant during the headache. The Veteran reported the inability to work during a migraine. The Veteran did not report that he was receiving treatment for the condition or that he was taking medication for the condition. In January 2012 the RO proposed a rating reduction from 50 percent to 30 percent, based on the August 2011 VA examination and medical records which showed a diagnosis of migraine headaches. However, the RO observed that there was no record of treatment or use of medications to treat the headaches. The RO added that there was no evidence the Veteran was missing work as a result of his migraine headaches. The Veteran responded by explaining that he does not go to the doctor for every migraine because that would be not be possible. He also stated that he is out of sick leave and most personal leave as a result of his headaches and that sometimes he is at work when he has a migraine and he goes into his office with the lights off to recover. The Veteran submitted an additional statement indicating that he was having difficulty getting medication refills from his primary care provider and difficulty getting appointments. In the instant case, the weight of the evidence does not establish sustained improvement in the Veteran’s service-connected migraine headaches, including under the ordinary conditions of life and work. The Veteran does not bear the burden of demonstrating entitlement to a retention of the higher evaluation. Brown, 5 Vet. App. at 418. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The VA examination in August 2011 does not show improvement in the Veteran’s condition. In fact, it contains reports of increased frequency of the Veteran’s migraine headaches. The Veteran was employed at the time, but indicated that he had used all his sick leave, most of his personal leave, and would sit in his office with the lights off when he had a migraine at work. The weight of the evidence of record does not show a sustained improvement in the Veteran’s migraine headaches at the time of the June 2012 reduction. As such, the reduction of the 50 percent evaluation to 30 percent effective September 2012 was not proper. The requirements for restoration have been met. 2. Rating in excess of 50 percent for migraine headaches Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing a veteran’s symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary concern in a claim for an increased evaluation is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A staged rating is warranted if the evidence contains factual findings that demonstrate distinct periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings. As previously noted, the Veteran’s service-connected migraine headaches are currently evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. The rating criteria do not define “prostrating” nor has the Court. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” The rating criteria also do not define “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Throughout the pendency of the appeal, the Veteran has been assigned the maximum rating of 50 percent. As the highest rating has been awarded throughout the pendency of the appeal, the Board concludes that the Veteran is not entitled to a higher schedular rating. There are no other diagnostic codes that are applicable for rating the Veteran’s migraine headaches. Therefore, a schedular rating in excess of 50 percent for migraine headaches is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel