Citation Nr: 21029566 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-18 384 DATE: May 13, 2021 ORDER New and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss. A 50 percent rating for migraine headaches is restored. A rating in excess of 10 percent for migraine headaches is dismissed. REMAND Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A May 1992 rating decision and June 1992 notification letter that denied service connection for bilateral hearing loss was not appealed and the decision became final. 2. Evidence received since the May 1992 rating decision and June 1992 notification letter is new and material, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. A September 2014 rating decision implemented the disability rating reduction from 10 percent to 0 percent for migraines. 4. At the time of the February 1, 2015 effective date of the reduction, the 10 percent rating for the Veteran's migraines had not been in effect for more than five years. 5. The evidence of record at the time of the September 2014 AOJ rating decision failed to demonstrate a sustained improvement in the Veteran's service-connected migraines under the ordinary conditions of life and work. 6. The appeal for a rating in excess of 10 percent for migraine headaches is moot. CONCLUSIONS OF LAW 1. The May 1992 rating decision and June 1992 notification letter that denied the claim for entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria to reopen the service connection claim for bilateral hearing loss have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The reduction of the rating for service-connected migraines from 50 percent to 10 percent was improper and restoration of the 50 percent rating, effective March 30, 2012, is warranted. 38 U.S.C. § § 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, Diagnostic Code 8100. 4. The appeal of the claim of entitlement to an increased disability rating for migraines is moot by virtue of the Board's decision herein, restoring a maximum 50 percent disability rating for migraines, effective March 30, 2012, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104(a), 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from September 1981 to March 1989. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in March 2020, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. New and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss. The RO initially denied the claim in a May 1992 rating decision and June 1992 notification letter on the grounds that there was no evidence that the Veteran had a current diagnosis for bilateral hearing loss. The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Veteran applied to reopen the claim in March 2012. An October 2012 rating decision denied reopening the Veteran's claim because the evidence received continued to show no evidence of a current diagnosis for bilateral hearing loss. Since the May 1992 rating decision, documents have been associated with the claims file that suggest a current disability. A January 2020 private medical opinion discussed a possible current diagnosis for bilateral hearing loss. VA outpatient treatment records also reflect the Veteran's hearing has further deteriorated. As these documents represent evidence not previously submitted to agency decision makers and relate to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits. 2. Restoration of a 50 percent rating for migraine headaches. The Veteran contends that the 50 percent rating for her migraine headaches should be restored. When determining whether a reduction was proper, there are two sequential steps that must be addressed on appeal. First, whether the RO satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If yes, the second step concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the rating reduction did not result in a reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was not reduced. Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Cf. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). The procedural requirements were properly applied. In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). In this case, the Veteran's 50 percent disability rating became effective March 30, 2012. The rating was reduced to 10 percent, effective February 1, 2015. Accordingly, 38 C.F.R. § 3.344(c) applies. Under 38 C.F.R. § 3.344(c), reexaminations disclosing improvement in a service-connected disability will warrant reduction in rating. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 420 (1993). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the RO's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Under DC 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran's service-connected migraines from 50 percent to 10 percent was improper and the 50 percent rating is restored, effective March 30, 2012. The Veteran's 50 percent rating was assigned based on the findings of an October 2012 VA examination, at which time, the Veteran reported having pulsating and throbbing head pain on both sides that worsened with physical activity. The non-headache symptoms associated with her headaches included nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The headaches typically lasted one to two days. The Veteran had very frequent characteristic prostrating attacks of migraine headache pain more than once per month. The Veteran's migraines impacted her ability to work because it would cause her to miss approximately two days of work per month and she was unable to take pain medications while employed in her customer service job because it caused drowsiness. In October 2012, the Veteran was awarded a 50 percent rating under Diagnostic Code 8100, effective March 30, 2012. The Veteran's migraines were reexamined in March 2014. At that time, the Veteran reported having pulsating and throbbing head pain on both sides for a duration of less than one day with associated non-headache symptoms of nausea, vomiting, and sensitivity to light. The VA examiner remarked that the Veteran had migraines with less frequent characteristic prostrating attacks. However, the VA examiner also noted the Veteran's headaches impacted her ability to work due to "increased absenteeism (typically 2-4 days per month, per Veteran)." January 2020 VA treatment records show the Veteran endorsed severe headaches with vomiting. She said the headaches can last for days at a time, and she is not able to do her job or leave her home. The Veteran stated she has more than 16 headaches days per month. The Veteran testified before the undersigned in February 2020. She explained that her migraine headache symptoms have not improved at any point during the course of the appeal. She endorsed continuous symptoms of migraine headache pain. She explained that her migraines prevent her from working at a fully functional capacity and have caused her to lessen her workload as a result. In a July 2020 letter, the Veteran's treating VA neurologist stated the Veteran "suffers from severe and prostrating migraine headaches associated with disabling vertigo symptoms. Her migraines affect significantly her quality of life and ability to work and relationships." A July 2020 VA examination showed the Veteran continued to exhibit pulsating and throbbing head pain on both sides that worsened with physical activity. The non-headache symptoms associated with her headaches included nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The headaches typically lasted one to two days and characteristic prostrating attacks occurred once every month. After a thorough review of the evidence, the Board finds that the record does not establish by a preponderance of the evidence that the Veteran's migraines improved so as to warrant a rating reduction under the appropriate rating criteria. Notably, the award of a 50 percent rating in the October 2012 AOJ rating decision was predicated on a finding of very frequent characteristic prostrating attacks of migraine headache pain more than once per month and missing one to two days of work per month. The rating reduction was premised on the VA examiner's findings of migraines with less frequent characteristic prostrating attacks. However, the rating decision did not account for the same consistent symptoms causing prostrating attacks or the Veteran's increased number of workdays missed per month. Additionally, the Veteran has generally alleged a worsening of the migraines, and the Board finds no evidence suggesting why the Veteran's migraines would improve from a medical point of view (e.g., corrective surgery). Furthermore, there is no finding from a competent examiner that the Veteran has demonstrated actual improvement of the migrainesparticularly under the ordinary conditions of life. The October 2012 and March 2014 VA examinations show essentially the same symptoms of pulsating and throbbing head pain on both sides for a duration of less than one day with associated non-headache symptoms of nausea, vomiting, and sensitivity to light and missing two to four workdays per month as well as decreased work production overall, which is entitled to a 50 percent rating under 38 C.F.R. § 4.124a, DC 8100. In sum, based on the evidence at the time of the reduction, the preponderance of the evidence did not establish that the Veteran's service-connected migraines demonstrated improvement under ordinary conditions of life and work. Accordingly, based on the analysis above, the reduction of the Veteran's migraines was improper, and restoration of a 50 percent rating is warranted effective March 30, 2012. 3. A rating in excess of 10 percent for migraine headaches. Under 38 U.S.C. § 7105(d)(5), the Board may dismiss any appeal which fails to allege a specific error in fact or law in the determination being appealed. As outlined above the Board has found the reduction from 50 to 10 percent to be improper and has restored the rating for the entire appeal period. Thus, the appeal as to this issue is dismissed. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The record indicates that the Veteran's claims file is currently missing relevant VA treatment records, as VA audiology notations dated April 2017 and August 2018 indicate that audiological examinations were conducted on April 4, 2017, and August 9, 2018; however, the full results of these audiograms are not currently located in the Veteran's claims file. Consequently, the Board is unable to determine the extent of the Veteran's alleged bilateral hearing loss, and upon remand, any outstanding relevant records, including all VA treatment records relating to the Veteran's VA audiology examinations, must be associated with the claims file. See 38C.F.R. §3.159(c). The Veteran also submitted a private report from Adept Audiology, however any audiograms or complete treatment records were not included. On remand, these records should be obtained. Furthermore, in light of the evidence suggesting the Veteran's hearing has changed, a VA examination should be scheduled to determine the current level of any hearing loss to determine whether the hearing meets 38 C.F.R. § 3.385. Accordingly, in light of the foregoing, a remand is warranted to obtain all relevant outstanding VA treatment records, thereby ensuring that VA has fulfilled its duty to assist the Veteran in the development of her claim. See 38C.F.R. §3.159(c)(4)(i). The matter is REMANDED for the following action: 1. Obtain the April 4, 2017, and August 9, 2018 VA audiograms and associate a copy of each with the Veteran's electronic claims file. 2. Request complete treatment records, to include the audiograms from Adept Audiology. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of severity of any current hearing loss. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.