Citation Nr: 21021071 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-18 990A DATE: April 9, 2021 ORDER Effective July 1, 2015, restoration of a 30 percent rating for service-connected migraine headaches is granted. REMANDED Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the record lacks evidence that the Veteran received the predetermination letter required by regulation notifying him of his rights regarding the proposal to reduce his rating for service-connected migraine headaches from 30 to 0 percent. CONCLUSION OF LAW The criteria for restoration of a 30 percent rating for service-connected migraine headaches effective July 1, 2015, are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 2003 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his April 2018 VA Form 9, the Veteran requested a hearing before the Board on the issues of the propriety of the rating reduction for migraine headaches and an increased evaluation for migraine headaches that stem from a March 2018 Statement of the Case (SOC). Accordingly, the Veteran was scheduled for a hearing before the Board in May 2019. In an April 2019 written correspondence, the Veteran, through his authorized representative, expressed his intent to withdraw his request for a hearing. 38 C.F.R. § 20.704(e); see also June 2019 Attorney Brief (stating Veteran withdrew his hearing request related to the reduction of and increased evaluation for migraine headaches). The Veteran’s April 2019 written correspondence also requested a 90-day stay of the case to submit additional evidence and argument. The Board notes that the Veteran also has two other appeals pending before the Board stemming from September 2019 and October 2019 VA Forms 9 in which the Veteran requested hearings on issues adjudicated in a September 4, 2019 SOC and a September 20, 2019 SOC. Those appeals respectively concern the issues of the propriety of a reduction of the rating for a right knee disability and service connection for an acquired psychiatric disorder and hypertension. The Veteran has not withdrawn his hearing requests for those appeals and those hearings have not yet been conducted. As such, those claims are not currently ripe for adjudication in this decision. 1. Effective July 1, 2015, restoration of a 30 percent rating for service-connected migraine headaches is granted. The Veteran asserts that his rating for migraine headaches should not have been reduced because his disability has not substantively improved. See June 2019 Attorney Brief; June 2015 Notice of Disagreement (NOD); January 2015 Statement in Support of Claim. The Board agrees. Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio (invalid from the beginning). See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). When reducing a disability rating, VA is required to comply with several regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation 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 latest address of record of the contemplated action and furnished detailed reasons for the proposed reduction. The beneficiary must be given “60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level” as well as 30 days to request a predetermination hearing. See 38 C.F.R. §§ 3.105(e), (i). Here, the reduction of the Veteran’s rating for service-connected migraine headaches resulted in a reduction of his combined disability evaluation and his monetary compensation. See November 2014 rating decision (proposing to reduce the Veteran’s rating for migraine headaches from 30 to 0 percent). As such, the VA was required to notify the Veteran in writing that he had 60 days to present “additional evidence to show that compensation payments should be continued at their present level” and of his right to a predetermination hearing. 38 C.F.R. §§ 3.105(e), (i). In its October 2019 remand, the Board observed that the November 2014 predetermination letter notifying the Veteran of his rights pursuant to 38 C.F.R. § 3.105 had not been associated with the claims file. Accordingly, the Board remanded, in part, for the RO to associate the November 2014 predetermination letter with the file. See October 2019 Board remand at 4, remand directive 1. In the September 2020 Supplemental Statement of the Case (SSOC), the RO stated that it had been unsuccessful in attempting to locate the November 2014 predetermination letter. See September 2020 SSOC at 33-34. The RO observed, however, that the Veteran responded to the proposed reduction in a January 2015 Statement in Support of Claim. Id. Thus, the RO seemingly attempted to use that statement as circumstantial proof that the Veteran received the predetermination letter. Upon review, the Board finds that the Veteran’s January 2015 Statement in Support of Claim responding to the proposed reduction does not provide any evidence that he received the predetermination letter notifying him of his rights pursuant to 38 C.F.R. § 3.105. The statement does not reference receiving the letter and neither does it decline nor request a predetermination hearing. The statement simply disputes the proposed reduction, which could have been in reference solely to the November 2014 rating decision that proposed the reduction. Moreover, the November 2014 rating decision by itself does not contain the notifications required by 38 C.F.R. § 3.105. The Veteran’s response to the rating decision does not indicate one way or the other whether he ever received the predetermination letter. Since the claims file still does not contain the November 2014 predetermination letter and the RO has conceded that it cannot find it or any evidence of ever having sent it, the Board finds that there is reasonable doubt concerning whether the Veteran was properly notified of his predetermination rights as required by regulation. Accordingly, the Board resolves that reasonable doubt in the Veteran’s favor and finds that he was not properly notified as required by 38 C.F.R. § 3.105 before his disability rating was reduced. Thus, the reduction is void ab initio and a rating of 30 percent for service-connected migraine headaches is restored effective July 1, 2015. REASONS FOR REMAND 2. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. In its October 2019 decision, the Board remanded this matter for the RO to obtain a new examination and medical opinion regarding the Veteran’s migraine headaches. Pursuant to the Board remand, the Veteran underwent an examination in August 2020. The examiner, however, did not discuss all the questions identified in the remand directives. As a result, the RO requested an addendum opinion and the matter was assigned to an examiner in September 2020. The examiner was unsuccessful in reaching the Veteran by telephone and, therefore, stated he could not provide the requested addendum opinion. The Board notes that the Veteran was not provided advance notice that an examiner would attempt to contact him for an addendum opinion. The examiner made three attempts in the span of about 90 minutes to reach the Veteran as well as two attempts at reaching another individual. The Board finds that the attempts to contact the Veteran were insufficient. As the August 2020 examination and opinion failed to comply with the Board’s October 2019 remand instructions, remand is warranted for the RO to make a more concerted effort at contacting the Veteran to ensure an addendum opinion can be obtained. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the November 2014 examiner. An in-person examination is not required unless indicated by the examiner. The Veteran should be provided advance notice in writing about how to schedule a time to speak with the examiner. The RO and examiner should attempt to reach the Veteran at all phone numbers on file and written correspondence should be sent to his current mailing address. The examiner should ascertain the symptoms and severity of the Veteran’s service-connected migraine headaches. The entire claims file should be reviewed, and the examiner should discuss the Veteran’s migraine complaints and symptoms since June 2013 with the Veteran and document the Veteran’s assertions in the examination report. The examiner must allow the Veteran to complete a migraine headaches questionnaire if the Veteran so desires and attach this to the examination report. The examiner must then: (a.) Identify all associated characteristics of the Veteran’s migraine headaches (including non-headache symptoms), and document these in the examination report. (b.) Describe the frequency and duration of the headaches. (c.) Identify all medications and other modalities that the Veteran uses to relieve his headaches and indicate the efficacy of such in controlling his headaches. (d.) State whether the Veteran has had characteristic prostrating attacks of migraine headaches since June 2013, to include their frequency and severity. (e.) State whether the Veteran’s migraine attacks are productive of severe economic inadaptability. (f.) If it is determined that there have been periods of sustained ebbs and flows in the severity of the Veteran’s migraines since June 2013, provide the timeframe(s) and characteristics of the Veteran’s migraines during these presentations. Failure to respond to each directive above and to provide a rationale for all opinions expressed will render the opinion inadequate. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, Associate 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.