Citation Nr: 18157426 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-63 318 DATE: December 12, 2018 ORDER The 10 percent disability rating for mixed tension vascular headaches is restored, effective September 1, 2013 and, to that extent, the appeal is granted. REMANDED The issue of entitlement to an increased rating in excess of 10 percent for mixed tension vascular headaches is remanded. FINDING OF FACT The Veteran’s service-connected headaches did not show actual improvement under the normal circumstances of life during the pertinent appeal period. CONCLUSION OF LAW The reduction of the 10 percent rating for service-connected mixed tension vascular headaches was improper. 38 U.S.C. §§ 1155, 5103, 5103(a), 5112(b)(6) (2012); 38 C.F.R. §§ 3.103(b), 3.105(e), 4.1, 4.2, 4.7, 4.115(a), 4.115(b), Diagnostic Code (DC) 8199-8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to February 1980. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The 10 percent disability rating for mixed tension vascular headaches is restored, effective September 1, 2013 and, to that extent, the appeal is granted. The Board finds that the reduction of the Veteran’s rating for his service-connected headaches from 10 percent to a noncompensable rating was improper, and thus restores the 10 percent rating effective September 1, 2013. Notwithstanding the procedural steps that must be taken, 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) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). The Veteran was notified of the RO’s intent to reduce his rating for his service-connected headaches by a letter dated in April 2013. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. Final action to reduce the rating for his disability was taken pursuant to 38 C.F.R. § 3.105 (e) in the June 2013 rating decision. The rating reduction was made effective beginning September 1, 2013. Consequently, the Board finds that the RO did not violate any of the procedures required under 38 C.F.R. § 3.105, as the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105 (e). Therefore, having decided that the process required to reduce the Veteran’s rating was correctly followed by the RO, the next question to be addressed is whether, given the available evidence, a reduction to a noncompensable rating was proper. Throughout the rating period on appeal, the Veteran’s headaches have been rated under 38 C.F.R. § 4.12a, DCs 8199-8100. Under DC 8100, migraines are evaluated as follows: a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. As noted in the applicable rating decision, the Veteran’s 10 percent evaluation was based upon a February 2011 VA examination report. He reported experiencing headaches every other month, which lasted for about one day. He further stated that the headaches were intense and began quickly. In June 2013, the RO reduced the Veteran’s disability rating for his headaches to a noncompensable rating based upon an April 2013 VA examination. At the time of the examination, he experienced headaches one per month, which lasted for up to two days. The headaches were pulsating and throbbing in nature, and resulted in sensitivity to light and sound. At a December 2014 VA examination, the Veteran again described experiencing headaches that were pulsating and throbbing in nature, which lasted for up to two days. An October 2016 VA treatment record documented reports of daily headaches and monthly migraines. See October 13, 2016 VA Treatment Record. Most recently, in the December 2016 VA Form 9, the Veteran reported that he experienced migraines between two and three times monthly, which lasted for up to two days. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 10 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust, supra. Rather, the April 2013 and December 2014 VA examination reports serve to support the 10 percent evaluation, as they indicate that the Veteran’s symptomatology continued to result in severe headaches or migraines at least every other month. Indeed, the Veteran consistently reported experiencing throbbing headaches monthly. In April 2013, he further indicated that these headaches resulted in sensitivity to light and sound. Indeed, the Veteran’s disability picture since the April 2013 examination has not been significantly different from his disability picture at the February 2011 examination, which had been the basis of the 10 percent rating. Therefore, the Board finds that the reduction of the 10 percent disability rating was improper and that the restoration of the 10 percent rating for service-connected mixed tension vascular headaches is warranted, effective September 1, 2013. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. REASONS FOR REMAND The issue of entitlement to an increased rating in excess of 10 percent for mixed tension vascular headaches is remanded. Although the Board has reinstated the 10 percent rating for the Veteran’s service-connected headaches, it appears that his condition may have worsened in severity. Thus, additional development is necessary prior to adjudicating the increased rating claim. In the December 2016 VA Form 9, the Veteran stated that he experienced migraines between two and three times per month, lasting for up to two days. He further stated that these headaches were not relieved by lying on his back or stomach, and that he had difficulty moving his head. As the Veteran previously reported experiencing migraines every other month or once per month, the current statements indicate that his condition may have worsened in severity. Based on the Veteran’s report of worsening symptomatology, the medical evidence of record, and the fact that his last VA examination related to his headaches took place in December 2014, the Board finds that he should be afforded another VA examination to determine the current severity of his service-connected headaches. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to his headaches. Contact the Veteran and request that he provide or identify any additional updated outstanding private records pertinent to treatment for his headaches. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. If any requested records cannot be obtained, the Veteran must be notified of the attempts made and of what additional actions will be taken regarding his claim 2. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected headaches. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner should address the functional and occupational effect of the Veteran’s headaches. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel