Citation Nr: 20071771 Decision Date: 11/05/20 Archive Date: 11/05/20 DOCKET NO. 17-06 059 DATE: November 5, 2020 ORDER Restoration of a 30 percent evaluation for migraine headaches effective February 1, 2015 is granted. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT 1. The Veteran was granted service connection for migraine headaches in an August 2007 rating decision; a noncompensable (zero percent) evaluation was assigned, effective April 21, 2007. 2. In a December 2007 rating decision, the RO increased the assigned initial rating for migraine headaches to 30 percent, effective from April 21, 2007. 3. In a November 2014 rating decision, the RO reduced the rating for service-connected migraine headaches to 10 percent, effective from February 1, 2015. 4. The record then available did not reflect that there had been improvement in the service-connected migraine headaches under the ordinary conditions of life and work. CONCLUSION OF LAW Restoration of a 30 percent disability rating for the Veteran’s service-connected migraine headaches is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1989 to November 1989 and from November 2002 to April 2007. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated November 2014, May 2015, and August 2015 of the Department of Veterans Affairs (VA) Regional Office (RO). The November 2014 rating decision reduced the assigned rating for migraine headaches to 10 percent from February 1, 2015. In the May 2015 rating decision, the RO increased the assigned rating for migraine headaches to 30 percent from April 27, 2015. The August 2015 rating decision confirmed and continued a previous denial of service connection for PTSD, denied entitlement to a TDIU, and denied a rating in excess of 30 percent for migraine headaches. The Veteran filed a notice of disagreement (NOD) in August 2015. A statement of the case (SOC) was issued in July 2017 and the Veteran perfected a timely appeal in January 2017. In February 2020, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. Notably, in the August 2015 NOD, the Veteran challenged the reduction of his disability rating for migraine headaches. He has also repeatedly offered argument concerning the worsening severity of his migraine headache symptomatology. See the NOD dated August 2015, the Veteran’s statement dated September 2015, and the Board hearing transcript dated February 2020. The Board has therefore characterized the issues on appeal accordingly. 1. Whether the reduction of the Veteran’s disability rating for migraine headaches from 30 percent to 10 percent, effective February 1, 2015, was proper. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, 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 beneficiary of the final rating action expires. Id. In every reduction case, there must be a finding of improvement. In Murphy v. Shinseki, 26 Vet. App. 510 (2014), the Court of Appeals for Veterans Claims (Court) stated that the RO and Board are required “in any rating-reduction case” to determine (1) “based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability;” (2) “whether the examination reports reflecting such change are based upon thorough examinations;” and (3) whether any improvement “actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work” (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13 (1992). Murphy, 26 Vet. App. at 517 (quoting Brown v. Brown, 5 Vet. App. 413, 421 (1993)). Similarly, Faust v. West held that VA must comply with regulations “applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999); Brown, 5 Vet. App. at 420); Murphy, 26 Vet. App. at 517. Even where the assigned rating is less than five years old and 38 C.F.R. § 3.344(c) applies, improvement in a Veteran’s ability to function must still be shown under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings which have continued for long periods at the same level (five years or more). The United States Court of Appeals for Veterans Claims (Court) has determined that once the five-year requirement of 38 C.F.R. § 3.344(c) has been satisfied, a reduction of the pertinent rating percentages can only be effective if the reduction complies with the provisions of 38 C.F.R. § 3.344(a), which the Court described as a four-prong test. See Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, the Court requires that adjudicators must: (1) Review the entire record of examinations and medical and industrial history to ascertain whether the recent examination or examinations on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete and those on which payments were authorized or continued; (3) nor reduce an evaluation for a disability which is subject to periodic improvement on one examination except in cases where all the evidence clearly warrants a finding of material improvement; and (4) consider whether the evidence makes it reasonably certain that any improvement found will be maintained under the ordinary conditions of life. Brown, 5 Vet. App. at 419. The burden is on the Board to establish by a preponderance of evidence that the rating reduction was warranted. Brown, 5 Vet. App. at 420. There must be actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned Diagnostic Code. Under 38 C.F.R. § 3.344(c), if a disability rating has been in effect for fewer than five years, a reduction must be based upon a finding of “improvement” in the disability. The improvement must also reflect an actual improvement in the ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. A determination that a disability has improved must be based upon a review of the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (“[w]hether or not a disability has improved cannot be determined without reference to prior records detailing the history of that condition”). 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 examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. The evidence of record at the time of the rating reduction must support the reduction and the pertinent post-reduction evidence favorable to restoring the rating must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). When determining whether improvement is shown, the last examination upon which the rating at issue was based or continued is generally the comparison point. See Hohol v. Derwisnki, 2 Vet. App. 169 (1992); see also Collier v. Derwinski, 2 Vet. App. 247 (1992) (holding that where a rating is continued to determine if improvement was shown the comparison point could also include prior examinations). Examinations reflecting improvement must be thorough and adequate. Faust, 13 Vet. App. at 349; see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that an examiner’s failure to review the claims file rendered the reduction decision void). Here, the Veteran contends that the reduction from 30 percent to 10 percent for his service-connected migraine headaches was not warranted. He argues that the evaluation should be restored. See, e.g., the NOD dated August 2015. As an initial matter, the Board finds that the evidence does not indicate, and the Veteran does not contend, that the relevant notice requirements in effectuating the reduction have not been met in this case. The procedural requirements set forth in 38 C.F.R. § 3.105(e) regarding reduction in benefits (i.e. the issuance of a rating decision proposing the reduction or discontinuance and setting out all material facts and reasons underlying the proposal; notification to the Veteran; and providing the Veteran 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level) apply in this case as its reduction affected his overall combined evaluation or monthly monetary amount. See 38 C.F.R. § 3.105(e). To this end, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, the Board notes that the Veteran underwent a VA examination as to his service-connected migraine headaches in June 2014. In a June 2014 rating decision, the Veteran’s 30 percent evaluation for his service-connected migraines was proposed to be reduced to 10 percent on the basis of that examination. The Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence, in a June 2014 letter. The Veteran was afforded another VA examination as to his headaches in October 2014. The AOJ finalized the discontinuance of the Veteran’s 30 percent evaluation in a November 2014 rating decision and reduced the assigned rating to 10 percent, effective February 1, 2015. The effective date of the reduction, February 1, 2015, was effective 60 days from the date of notice of the November 2014 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for the reduction of the Veteran’s 30 percent rating for migraine headaches to 30 percent was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). The question that remains is the substantive question of whether the reduction was proper. In essence, as explained above, the law requires that the service-connected disability must have demonstrated improvement in order for an assigned rating to be reduced. 38 C.F.R. § 4.13. In an August 2007 rating decision, the Veteran was service connected for migraine headaches and assigned a noncompensable (zero percent) evaluation, effective April 21, 2007. A December 2007 rating decision increased the assigned initial rating to 30 percent from the date of service connection, April 21, 2007. In a November 2014 rating decision, the assigned rating was reduced to 10 percent, effective February 1, 2015. As the 30 percent disability rating was in effect for five years or more, the greater protections, set forth in 38 C.F.R. § 3.344 do apply in this case. In June 2014, the Veteran was afforded a VA examination to address his migraine headache symptomatology. The examiner noted that the Veteran’s migraines are treated with Imitrex. The Veteran reported headaches manifested by pain on both sides of the head, which worsen with physical activities. The headaches usually start in the left frontal area and spread all over his head. The Veteran also endorsed non-headache symptoms including nausea, sensitivity to light, and sensitivity to sound. The duration of his headaches is less than one day. The examiner reported that the Veteran does not experience characteristic prostrating attacks of migraine headache pain. He also does not have prostrating attacks of non-migraine headache pain. The examiner reported that the Veteran’s migraine headaches have no impact on his ability to work. VA treatment records dated in June 2014 noted the Veteran’s complaints of migraines. The Veteran described experiencing symptoms such as the room spinning and photo sensitivity. VA treatment records dated in December 2014 noted the Veteran’s report that he experiences chronic migraine headaches every day. In a July 2014 statement, the Veteran reported, “[w]hen I go to the hospital for my serious migraines, they give me a shot which I can take only once a month.” The Veteran was afforded another VA examination as to migraine headaches in October 2014 at which time he indicated that he experiences migraine seven to ten days per month. He stated that he goes to the emergency room for Tramadol injections once a month because he was told he can only have Tramadol once a month. He stated that he often treats his migraines with Sumatriptan; however, he is only prescribed nine tablets at a time. The examiner noted that the Veteran “is also prescribed Topiramate, but is not dosing correctly by his recall today.” The Veteran is additionally taking Amitriptyline. The Veteran described his head pain as pulsating or throbbing. He endorsed blurred vision during migraines. The duration of his headaches is one to two days. His headache pain occurs on the left side of his head. The examiner indicated that the Veteran experiences characteristic prostrating attacks of migraine pain once a month. The examiner further indicated that the Veteran has very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner concluded that the Veteran’s migraine headaches do impact his ability to work; “Veteran states he is unable to work, he is 100 percent service connected.” A VA addendum opinion was obtained in October 2014 in order to seek clarification from the October 2014 VA examiner concerning the Veteran’s migraine headache symptomatology. The examiner clarified that the Veteran does not experience characteristic prostrating attacks of migraine/non-migraine headache pain. He also does not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner indicated that the Veteran’s headaches have no impact on his ability to work. The examiner explained that the Veteran’s treatment records do not support his subjective report of experiencing seven to ten migraines per month with multiple doses of medication per one migraine episodes. The findings of the June 2014 and October 2014 VA examination reports formed the basis of the RO’s decision to reduce the Veteran’s disability rating from 30 percent to 10 percent. However, the June 2014 and/or October 2014 VA examination reports did not specifically address whether the Veteran’s thoracolumbar spine symptomatology had improved since his prior VA examination in June 2011, and additionally failed to specify whether any such improvement actually reflected improvement in his ability to function under the ordinary conditions of life and work. As indicated above, pursuant to the Court's holdings in Faust and Brown, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 350; see also Brown, 5 Vet. App. at 421. Although the June 2014 and October 2014 examination findings showed some improvement in the Veteran's headache symptoms, the examiner did not fully discuss the impact of the Veteran’s reported migraine headache symptoms to include whether the Veteran’s migraine headache symptoms reflected any actual improvement in his ability to function under the ordinary conditions of life and work. As such, the Board cannot conclude that there had been improvement over the disability previously characterized by the 30 percent rating. Consequently, the Board concludes that the record did not reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The previously assigned 30 percent rating for the service-connected migraine headaches is therefore restored from February 1, 2015. The appeal is allowed to that extent. See 38 C.F.R. § 3.344. REASONS FOR REMAND 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). is remanded. The Veteran asserts entitlement to service connection for PTSD based upon numerous military stressors including fear of hostile military activity while serving on security duty and on convoys during his service in Southwest Asia, as well as exposure to mortar impacts and improvised explosive device explosions. See the Veteran’s statements dated September 2008 and December 2014, VA treatment records dated March 2011. It is undisputed that the Veteran was deployed to Southwest Asia from February 2003 to July 2004 and from October 2006 to March 2007. Notably, the Veteran’s complete service personnel records (SPRs) have not been associated with his VA claims file. This matter must therefore be remanded in order for appropriate efforts to be undertaken to ensure that the Veteran’s service personnel records are obtained and associated with the claims file. 2. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. As to the claim of entitlement to a rating in excess of 30 percent for service-connected migraine headaches, the Veteran was most recently afforded a VA examination in October 2014. The Veteran has contended that his service-connected migraines have worsened since the October 2014 examination. See the Board hearing transcript dated February 2020; see also the Veteran’s statement dated March 2015. In support of his contentions of worsening severity, the Veteran has submitted migraine logs completed by his spouse. In light of the Veteran’s contentions, the Board finds that the Veteran should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected migraine headaches. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 3. Entitlement to a TDIU is remanded. Regarding the claim for a TDIU, the Board observes that the claim is intertwined with the other claims being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Therefore, this claim must also be remanded. The matters are REMANDED for the following action: 1. Contact the appropriate records custodians in order to obtain the Veteran’s complete service personnel records. Any response should be associated with the Veteran’s claims file. If said records cannot be obtained, provide the Veteran with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran’s claims file. 2. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. (Continued on the next page)   3. Schedule an appropriate VA compensation examination reassessing the severity of the Veteran’s service-connected migraine headaches. The claims file must be made available to the examiner for review in connection with the examination. The examination should be performed in accordance with the current disability benefits questionnaires. The examiner should determine all manifestations and residuals associated with his service-connected migraine headaches, and the severity of any such manifestations and residuals. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.