Citation Nr: 21068181 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-16 927 DATE: November 9, 2021 ORDER Restoration of the evaluation of migraine headaches, which was reduced from 50 percent to 30 percent effective October 1, 2015 is granted. FINDING OF FACT At the time of the reduction in rating of the Veteran's migraine headaches, the evidence of record did not reflect improvement in symptomology in the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration in the evaluation of migraine headaches at 50 percent disabling have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code (Code) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1980 to November 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Virtual hearing before the Undersigned Veterans Law Judge. 1. Restoration of the evaluation of migraine headaches, which was reduced from 50 percent to 30 percent effective October 1, 2015 When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 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). On May 6, 2015, the RO notified the Veteran of a proposed rating reduction, setting forth all material facts and reasons for the reduction. At that time, the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired. The Veteran submitted a supplemental argument but did not request a hearing. The RO took final action to reduce the disability rating in a July 2015 rating decision, and the rating was reduced from 50 to 30 percent, effective October 1, 2015. Based on these facts, the Board finds that the procedure for discontinuing the Veteran's 50 percent evaluation for his migraines was appropriately completed in this case in accordance with 38 C.F.R.§ 3.105(e). Reducing a rating also brings concurrent substantive requirements that must be followed. Although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have been in effect for more than five years, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown, 5 Vet. App. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, and 4.13). Ratings that have been in effect for less than five years, such as the Veteran's 50 percent rating, require improvement before an evaluation is reduced. 38 C.F.R. § 3.344(c). Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation; the rating agency must determine whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. The Court has articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining whether the evidence reflects an actual change in the disability. Second, it must determine whether the examination reports reflect such changes were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown, supra. The Board finds that the subsequent VA examination relied on for the reduction do not reflect an actual change in the ability to function under the ordinary conditions of life and work. After review of the evidence, the Board finds that the reduction was not proper as the RO did not address whether there was an actual improvement in the ability to function under the ordinary conditions of life and work. Rather, the decision merely noted that the Veteran was receiving a 30 percent evaluation for headache disability based on characteristic prostrating attacks occurring on an average once a month over last several months. The determination does not address whether the evidence shows an actual improvement in the Veteran's ability to function. The preponderance of the evidence does not show this to be the case. Indeed, during the April 2015 VA examination, the Veteran reported that he has increased frequency and intensity of the migraines. He states he was prescribed various medications, to include Sumatriptan, for his migraines. The Veteran experiences pulsating and throbbing head pain, localized to one side of the head, that worsens with physical activity. The examiner indicated that the Veteran's headache disability impacts his ability to work in that he experiences moderate-recurrent migraine headaches. In a June 2015 statement, the Veteran reported that he experiences headaches 4 to 5 times a month, not once a month. He indicated that the migraines lasts 6 hours to 1 to 2 days until his medications "kick in". In his September 2015 notice of disagreement, the Veteran asserts that his condition has not approved since he was first rated. He indicates that he has been on the same medications for the past 3 years and that he has a standing appointment with his doctor every 6 months since his condition is not improving. In short, the evidence does not show that the "improvement" in the migraine headache disability has actually led to an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, his 50 percent rating is restored. Finally, the Board also notes that a disability rating higher than 50 percent for headaches at any time during the appeal period is denied. A rating higher than 50 percent for migraine headaches is not available under the rating schedule. The Board finds that a higher rating is not warranted under any other rating criteria, as the Veteran's symptoms, mainly frequent headaches with light sensitivity and visual changes, have been accounted for by the criteria listed in Code 8100. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.