Citation Nr: A21017268 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210820-179986 DATE: October 26, 2021 ORDER The reduction of the disability rating for left trigeminal neuralgia from 30 percent to 10 percent, effective October 1, 2021, was proper. FINDING OF FACT At the time of the reduction, the evidence demonstrated improvement in the Veteran's left trigeminal neuralgia, including under the ordinary conditions of work and life. CONCLUSION OF LAW The criteria for restoration of the 30 percent rating for left trigeminal neuralgia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that rating decision to the Board and elected the Direct Review option. See August 2021 VA Form 10182. Accordingly, the Board may consider the evidence of record at the time of the July 2021 rating decision. 1. The reduction of the disability rating for left trigeminal neuralgia from 30 percent to 10 percent, effective October 1, 2021, was proper. By way of background, a July 2018 rating decision granted service connection for left trigeminal neuralgia and assigned a 30 percent rating, effective May 8, 2018. The Veteran filed a June 2020 claim for an increased rating and in August 2020 a rating decision was issued that proposed to decrease the assigned rating to 10 percent. A hearing was held before a hearing officer on the reduction issue in May 2021. A July 2021 rating decision reduced the rating to 10 percent, effective October 1, 2021. The Veteran filed a VA Form 10182 Notice of Disagreement on the propriety of the reduction. At the May 2021 RO hearing, the Veteran contended that the severity of his left trigeminal neuralgia did not improve from when the initial 30 percent rating was assigned in July 2018. Instead, he contends it has remained consistent or worse in severity and the VA examinations of record simply show the waxing and waning of his condition. See May 2021 Hearing Transcript. Specifically, he contends that his facial seizures have not improved and that the medication dosage he was given was increased in August 2020. 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). Here, the proper procedures were followed in implementing the reduction. The Veteran was notified of the proposed reduction for his service-connected left trigeminal neuralgia via an August 2020 rating decision and associated correspondence dated in August 2020. A hearing was held in May 2021 addressing the issue. The actual reduction was subsequently effectuated by a July 2021 rating decision, with an effective date of October 1, 2021. Therefore, there was compliance with all requisite procedural matters in accordance with 38 C.F.R. § 3.105(e). The Board must now consider whether the reduction in rating was proper. In this case, the provisions of 38 C.F.R. § 3.344(a) and (b), which apply to ratings in effect for five years or more, are not for application. The Veteran's 30 percent rating for left trigeminal neuralgia was in effect for less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c) apply, which states that, with respect to a disability rating in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Nevertheless, a rating reduction is not proper unless the veteran's disability shows actual improvement has occurred and that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). Regulations impose a clear requirement that VA rating reductions be based upon a review of the entire history of the Veteran's disability. Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. The examination reports reflecting such change must be based upon thorough examinations. Id. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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 evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran's left trigeminal neuralgia is rated under DC 8205, which evaluates paralysis of the fifth (trigeminal) cranial nerve and provides a 10 percent rating for moderate incomplete paralysis, a 30 percent rating for severe incomplete paralysis, and a maximum 50 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8205. Ratings under DC 8205 are dependent upon relative degree of sensory manifestation or motor loss. Id., Note. Upon review of the totality of the record, the Board finds the reduction proper, as the evidence demonstrates an actual improvement in the Veteran's left trigeminal neuralgia and an improvement in the Veteran's ability to function under the ordinary conditions of life and work. At the time of the rating reduction, the August 2020 VA examination report showed no more than moderate incomplete paralysis of the left trigeminal nerve, manifested by normal muscle strength and normal sensory testing, as well as the Veteran's subjective reports of moderate intermittent pain, moderate paresthesias and/or dysesthesia, mild numbness, and mild difficulty chewing and speaking. Based on this examination report, reflective of moderate symptoms, the RO reduced the 30 percent rating for left trigeminal neuralgia to 10 percent under DC 8205, which is consistent with moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. When compared to the evidence of record when the 30 percent rating for left trigeminal neuralgia was awarded, the evidence at the time of the rating reduction demonstrates improved muscle strength (i.e., from reduced (mild/moderate) muscle strength to normal muscle strength) and improved sensation (i.e., from decreased sensation to a normal sensory examination). See May 2018 Disability Benefits Questionnaire (DBQ) and July 2018 VA examination report. This contrast in turn shows that symptoms of left trigeminal neuralgia had improved so that motor and sensory deficits were no longer objectively demonstrated, and such evidence reflects an increased neurological function of the trigeminal nerve under the ordinary conditions of life and work. At a May 2021 Decision Review Officer hearing, the Veteran's representative reported that the Veteran's left trigeminal neuralgia had not improved since his medication, carbamazepine, was increased from 600 mg to 800 mg by VA in August 2020. However, August 2020 VA treatment records reflect that the dosage of carbamazepine was actually decreased from 800 mg to 600 mg, per the Veteran's request. In this regard, on August 16, 2020, the Veteran was hospitalized for chest pain and administered his prescription medications during his stay, including 800 mg of carbamazepine (200 mg tablets, 2 tablets to be taken every 8 hours) but he requested to be switched to his home dose of 600 mg, stating that he only took 600 mg of carbamazepine a day unless his seizures were flaring up. Therefore, the evidence indicates that the Veteran typically took less than half of the daily dosage prescribed for his left trigeminal neuralgia and provides further support in establishing an actual improvement in the disability under ordinary conditions of life and work at the time of the rating reduction. To the extent the Veteran's representative claims facial seizures is a new symptom and therefore not indicative of actual improvement, the Board finds that this allegation is not supported by the record. As noted above, VA treatment records reflect a longstanding prescription for carbamazepine used to treat trigeminal neuralgia, specifically "to prevent seizures." The Board notes that the Veteran has been taking carbamazepine for almost two decades and there is no evidence that he is diagnosed with any other seizure disorder such as epilepsy. See e.g., March 2003 and June 2016 VA treatment records. Although the May 2018 DBQ and July 2018 VA examination report did not explicitly mention facial seizures as a symptom, the July 2018 VA examiner noted the Veteran was doing well on carbamazepine. Thus, given the foregoing medical history, the Veteran's report of facial seizures at the August 2020 VA examination does not negate the actual improvement of his left trigeminal neuralgia and has no bearing on the matter. The Board acknowledges that the Veteran is competent to state that his left trigeminal neuralgia has not improved and that he experiences fluctuating symptoms and flare-ups. However, his reports are outweighed by the competent and probative medical evidence of record, including demonstrated improvement in motor and sensory function, and the Board finds his symptoms are adequately contemplated by the currently assigned 10 percent rating. Accordingly, for the reasons outlined above, the Board finds that the reduction in the Veteran's rating for left trigeminal neuralgia from 30 percent to 10 percent, effective October 1, 2021, was proper. Thus, restoration of the 30 percent rating is not warranted. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.