Citation Nr: 21002166 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-13 046 DATE: January 12, 2021 ORDER The rating reduction of the Veteran’s service-connected tension headaches from 10 percent to noncompensable, effective July 5, 2017, was improper; the 10 percent rating is restored. An increased rating of 30 percent, but no higher, for tension headaches is granted for the entire claim period. REMANDED The issue of entitlement to service connection for a disability causing visual impairment is remanded for further development. FINDINGS OF FACT 1. The Department of Veterans Affairs (VA) examination upon which the Veteran’s tension headaches rating reduction was based was less full and complete than the examination upon which payments were authorized or created. 2. A preponderance of the evidence of record indicates that, throughout the pendency of the claim period, the Veteran experienced characteristic prostrating attacks of tension headaches occurring on an average of at least once a month. CONCLUSIONS OF LAW 1. The reduction in the rating of the Veteran’s tension headaches from 10 percent to noncompensable, effective July 5, 2017, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124, Diagnostic Code 8100; Tucker v. Derwinski, 2 Vet. App. 201 (1992). 2. The criteria for an increased disability rating of 30 percent, but no higher, for tension headaches are met for the entire claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to July 1990 in the United States Navy. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a VA Regional Office (RO) which reduced the Veteran’s rating for tension headaches from 10 percent to noncompensable, effective July 5, 2017. The Veteran submitted a timely notice of disagreement (NOD) in January 2018 disputing the reduction. In addition, he requested an increased rating for his headaches. Thereafter, in December 2018, a VA RO issued another rating decision increasing the Veteran’s tension headaches rating from noncompensable to 30 percent, effective June 27, 2018. But, as this increase did not represent a complete grant of the benefits sought on appeal, the Veteran’s claim for an increased rating remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Rating Reduction of Tension Headaches As indicated above in the Conclusions of Law section, the Board finds that the reduction of the Veteran’s tension headaches rating from 10 percent to noncompensable was improper. Accordingly, the Board grants the Veteran’s appeal and restores his 10 percent rating. In support of this determination, the Board initially notes that, at first blush, the Agency of Original Jurisdiction (AOJ) did not comply with the due process requirements for a reduction as outlined in 38 C.F.R. § 3.105(e). This regulation requires VA to send the Veteran notice of a proposed reduction, stating all material facts and reasons, prior to the reduction’s enactment. However, the Court of Appeals for Veterans Claims (Court) stated in Tatum v. Shinseki that the plain meaning of 38 C.F.R. § 3.105(e) indicates that “notice is warranted only when there is a reduction in compensation payments currently being made.” 24 Vet. App. 139, 143 (2010) (citing O’Connell v. Nicholson, 21 Vet. App. 89 (2008) (internal quotation marks omitted). Here, the rating reduction at issue did not impact the Veteran’s combined disability rating as it remained at 60 percent both prior to and following the September 2017 rating decision. Accordingly, the AOJ did not err in not following the procedural steps outlined in 38 C.F.R. § 3.105(e). Moving to the substantive requirements of a rating reduction, where a disability rating has been in effect less than 5 years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. See 38 C.F.R. § 3.344(c). For ratings in effect for 5 years or more, there are other specific requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344(a) – (b). Those additional requirements are not applicable here as the Veteran’s 10 percent rating for his tension headaches was not in effect for at least 5 years prior to the reduction. 38 C.F.R. § 3.344(a) states that examinations that are “less full and complete than those on which payments were authorized or continued” cannot be used as a basis of reduction. Additionally, in Tucker v. Derwinski, the Court held that examination reports on which reductions are based must be adequate. 2 Vet. App. 201 (1992). In this case, it appears that the September 2017 rating decision effectuating the reduction was based upon a July 2017 VA headaches examination report, which noted that the Veteran did not experience characteristic prostrating attacks of headache pain. However, in the “Remarks” section of the report, the VA examiner made contradictory findings. Specifically, the examiner first indicated that the Veteran’s symptoms had worsened in severity since the last VA examination of record in June 2015. But, the examiner also stated that the Veteran’s service-connected diagnosis of tension headaches had resolved. These contradictory remarks lead the Board to conclude that the July 2017 VA headaches examination report is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board thus concludes that the rating reduction in this case was based upon an inadequate VA examination, contrary to Tucker. Accordingly, the Board finds the reduction to be improper and the Veteran’s 10 percent rating for his tension headaches is restored, effective July 5, 2017. Entitlement to Increased Ratings for Tension Headaches Currently, the Veteran is in receipt of a 10 percent rating prior to June 27, 2018, and 30 percent thereafter, for his tension headaches. After reviewing the evidence of record, the Board finds that he is entitled to an increased rating of 30 percent, but no higher, for the entire claim period. Accordingly—to this extent—the Veteran’s appeal is granted. In reaching this determination, the Board first notes that the Veteran’s headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this diagnostic code, a 50 percent rating is assigned for headaches with very frequent prostrating and prolonged attacks productive of severe economic inadaptability. Comparatively, a 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Moving to the evidence of record, the Board finds that the Veteran was provided one adequate VA headache examination during the pendency of his claim. Specifically, in June 2018, the Veteran was diagnosed by a VA examiner with tension headaches. The Veteran reported to the examiner that he experienced symptoms consisting of his head throbbing, periods of waxing and waning pain, and pain ranging from dull aches to sharp pains. The examiner described the Veteran’s treatment as acetaminophen 500 milligrams (mg) as needed. The examiner then noted that the Veteran’s typical headache pain was located on both sides of the head and at the occipital and frontal areas. The examiner acknowledged that the Veteran experienced characteristic attacks of headache pain occurring more frequently than once a month. However, the examiner indicated that the Veteran did not have very prostrating and prolonged attacks of pain productive of severe economic inadaptability. Lastly, the examiner remarked that the Veteran’s tension headaches moderately impacted his ability to work as a headache flare-up would make it difficult to perform tasks such as walking, watching, and reading. Separate from this June 2018 VA headache examination, the Veteran received treatment during the claim period at VA facilities. In May 2016, he was seen by a VA primary care provider after experiencing throbbing headaches. The Veteran reported that he had changed his diet and stopped drinking coffee. In May 2018, the Veteran received treatment at a VA neurology outpatient clinic. The Veteran stated that, at his retirement, he experienced headaches once every 1-2 months that lasted 5-6 hours on each occurrence. He then indicated that, since sometime in 2016, he experienced similar headaches now up to 2 to 3 times per month. The neurologist noted that the Veteran’s headaches did not cause vomiting, but were associated with photophobia and phonophobia. About 5 months later, in October 2018, the Veteran attended a follow-up appointment at the VA neurology outpatient clinic. On this occasion, the Veteran reported similar headaches occurring 2 to 3 times per month, with good response to acetaminophen. The Veteran indicated that his headaches lasted 4 to 5 hours. Lastly, in March 2019, the Veteran attended another follow-up appointment at the VA neurology outpatient clinic. At this appointment, the Veteran stated that he had tolerable, regular headaches triggered by stress and did not experience any severe symptoms. In addition to the VA treatment records associated with the claims file, the Veteran has provided lay statements during the pendency of his claim describing his headache symptoms. Firstly, in January 2018, the Veteran reported experiencing headache attacks 3 to 4 times per month and that he requested that his VA providers increase medication. Additionally, the Veteran reported that when an attack occurs, he keeps his grandchildren out of his house and retreats to a quiet, dark room. Secondly, in March 2018, the Veteran reported that his headaches affected interactions with his family. The Veteran then noted that he experienced headaches more than 2 to 3 times per month. Lastly, the Veteran reported that during an attack, he increases his consumption of medication and places himself in a dark room. From this evidence of record, the Board concludes that the Veteran has experienced characteristic prostrating attacks of tension headaches occurring on an average of at least once a month during the entirety of the claim period. Specifically, the Veteran’s attacks occurred around 2 to 3 times per month—but up to 4 times per month—since at least the time VA received the Veteran’s claim in January 2017. Under Diagnostic Code 8100, such symptoms warrant the assignment of a 30 percent rating for the entire claim period. See 38 C.F.R. § 4.124a. Thus, to this extent, the Board grants the Veteran’s claim. However, the Board also concludes that a rating greater than 30 percent is not warranted for any portion of the claim period. Specifically, the June 2018 VA examiner indicated that the Veteran’s prostrating and prolonged attacks of tension headaches were not productive of severe economic inadaptability—although the examiner did note that, during an attack, the Veteran would have difficulty performing tasks such as walking, watching, and reading. Separate from the June 2018 VA examination report, the Veteran did not state during the claim period that his headaches affected his activities so greatly as to be characterized as causing inadaptability. Rather, in March 2019, the Veteran reported to a VA neurologist that he did not have any severe symptoms and, rather, his headaches were regular and tolerable. Additionally, as noted in the October 2018 neurology outpatient note, the Veteran reported that he had a small farm and walked regularly. As evidence of severe economic inadaptability is required for the next higher rating of 50 percent under Diagnostic Code 8100, the Board declines to assign a rating greater than 30 percent in the instant case. Thus, to this extent, the Veteran’s appeal is denied. REASONS FOR REMAND Service Connection for a Disability Causing Visual Impairment As an initial matter, in his January 2017 claim, the Veteran requested service connection for an eye or vision disability. In the September 2017 rating decision on appeal, the AOJ characterized the Veteran’s claim as entitlement to service connection for a left-eye cataract. The Board finds this focus upon a left-eye cataract to be too narrow as, in Clemons v. Shinseki, the Court held that when a veteran submits a claim, he or she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. 23 Vet. App. 1, 6 (2009). Accordingly, pursuant to Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for a disability causing visual impairment. Moving beyond this recharacterization, the Board concludes that it cannot make a fully-informed decision on this service connection issue because a VA examiner has not yet opined whether any such disability arose during service. Accordingly, the Board finds that remand is warranted so that the Veteran may be provided a VA examination by an appropriate medical professional. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since March 2019. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After Item (1) has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any disability causing visual impairment. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify by diagnosis any current disabilities causing visual impairment. (b.) For each disability identified in part (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability was caused by, arose in, or is otherwise related to service. (c.) Please state whether any disability identified in part (a) may be characterized as a congenital or development defect. (d.) For each disability characterized as a congenital or development defect in part (c), please state whether it is at least as likely as not (50 percent probability or more) that any other condition was superimposed upon the defect in service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim (January 2017). The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.