Citation Nr: 20005089 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-56 281A DATE: January 22, 2020 ORDER Restoration of a 30 percent rating for the migraine headache disability from November 1, 2019 is granted. REMANDED Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. FINDINGS OF FACT The February 2019 VA examination report on which the reduction was based did not reflect a material improvement in the Veteran’s migraine headache disability nor is it reasonably certain that any improvement shown would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for restoration of a 30 percent rating for the migraine headache disability from November 1, 2019 are met. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2003 to December 2014. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from the January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was remanded by the Board in June 2019. Laws and Analysis—Rating Reductions By way of procedural background, in a January 2015 rating decision, the RO granted service connection for migraine headaches and assigned a 30 percent rating. Within a year of the January 2015 rating decision new evidence was obtained (VA examination dated in January 2016). The claim was readjudicated in a January 2016 rating decision and the 30 percent evaluation was continued. The Veteran filed a timely notice of disagreement with the rating assigned. Following a timely substantive appeal, the Board remanded the matter as the RO had not readjudicated the issue following a February 2019 VA examination. Subsequent to the Board’s remand, the RO proposed to reduce the Veteran’s migraine headache disability rating form 30 percent to 0 percent. See rating decision dated August 2019. An October 2019 rating decision decreased the rating effective November 1, 2019. Although the issue of the reduction is not specifically before the Board, the Board deems the issue of whether the reduction was proper to be part and parcel of the current appeal because the claim of increased rating covers the period prior to, during, and after the reduction. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that a review of an increased rating claim may take into account varying and distinct disability ratings throughout the entire time period the increased rating claim has been pending, to account for the dynamic nature of the disorder at issue). Accordingly, the Board takes jurisdiction of the issue of whether the reduction was proper. Before addressing whether the reduction was warranted, the Board must first determine whether the RO adhered to the proper procedure. Specifically, 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. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105 (e) (2018). Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105 (e), the effective date of the final action shall be 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 (i)(2). In this case, the proper procedures were followed for implementing the reductions. The RO proposed the reductions in an August 2019 rating decision that was mailed to the Veteran on August 23, 2019. The final rating action was issued on October 30, 2019, with the reductions to be effective November 1, 2019, which was more than 60 days after the date of the notice of the proposed reduction. Therefore, there was compliance with all requisite procedural matters. The Board may turn to the substance of the claim, namely, whether the evidence shows actual improvement in the rated disability at issue. In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. The rating at issue has been in effect for less than 5 years at the time of the reduction. Thus, 38 C.F.R. § 3.344 (a) and (b) are not for application. Nevertheless, in any case, to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. Having reviewed the applicable regulations, the Board turns to the evidence of record. During a February 2019 VA examination, the Veteran specifically reported that his symptoms had become “progressively worse” and more frequent. The Veteran indicated that he had migraines 3 times a week and his medication did not alleviate his symptoms. The Veteran rated his pain as 10 out of 10. He also indicated that he was pending an evaluation with a new neurologist. The examiner noted that the Veteran had pain on both sides of his head with associated nauseas, sensitivity to light, changes in vision, and irritability. His migraines were noted to last 1-2 days. Despite the Veteran’s reported symptoms, the examiner found that the Veteran did not have characteristic prostrating attacks of migraine pain. The basis for the reduction appears to have been the fact that the February 2019 VA examiner found that the Veteran did not have characteristic prostrating attacks. See 38 C.F.R. § 4.1124a, Diagnostic Code 8100. Nonetheless, the Board notes that in order for the Veteran’s rating to be properly reduced, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. In this regard, at the time of the February 2019 examination, the Veteran specifically indicated that his migraines had become worse and more frequent. The pain was also noted to make the Veteran irritable and was described as severe (i. e., 10 out of 10 on pain scale). Moreover, the case for improvement is belied by the fact that the Board’s June 2019 decision (rendered 4 months after the February 2019 examination) granted a TDIU based, in part, on the Veteran’s migraine headache disability and associated symptoms in a 2016 VA examination, which the Board notes were similar to those reported in the February 2019 examination. The Board recognizes that reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. In sum, the evidence suggests that the overall disability picture remained relatively consistent (although perhaps characterized differently in separate VA examinations). In sum, the weight of the evidence is at least in equipoise as to the restoration of the 30 percent rating for the Veteran’s migraine headache disability. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the rating reduction was not proper and restoration of the 30 percent ratings for migraine headaches from November 1, 2019 is warranted. REASONS FOR REMAND As noted above, during a February 2019 VA examination, the Veteran reported that he was pending an evaluation with a new neurologist. This evidence may prove relevant to the severity of the Veteran’s migraine headache disability. As such, efforts should be made to obtain these medical records prior to adjudication of the claim. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for the private medical treatment he received from his neurologist. After obtaining the completed VA Forms 21-4142, make reasonable efforts to obtain any outstanding private treatment records. Any records so obtained should be associated with the claims folder. 2. Obtain any updated VA treatment notes not currently of record and associate them with the electronic claims file. 3. If, after any additional, relevant records are received, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected migraine headache disability. (Continued on the next page)   4. Then, readjudicate the issue on appeal. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.