Citation Nr: 21029750 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-26 700 DATE: May 14, 2021 ORDER Entitlement to restoration of a 30 percent rating for migraine headaches, effective January 1, 2016, is granted. FINDING OF FACT Both the December 2015 rating decision in which the agency of original jurisdiction (AOJ) reduced the rating for migraine headaches from 30 percent to 0 percent, and the May 2016 statement of the case (SOC), reflect that the AOJ failed to consider, and to apply, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. CONCLUSION OF LAW The criteria for restoration of a 30 percent rating for migraine headaches, effective January 1, 2016, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.105, 3.344 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2007 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a personal hearing before a member of the Board in his June 2016 formal appeal (VA Form 9). The Veteran was scheduled for his requested hearing on October 24, 2019. However, the Veteran did not appear at a hearing before the Board. As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2020). With respect to the issue on appeal, the AOJ incorrectly phrased the issue as increased rating for migraine headaches instead of whether the reduction in the rating was proper in the May 2016 SOC. An increased rating claim is different from a rating-reduction claim since, in an increased rating claim, the claimant has the burden of showing the disability at issue has worsened, whereas in a rating-reduction claim VA has the burden of showing the disability at issue instead has improved. The pleadings and burdens of proof differ depending on whether the claim involves a requested increase or disputed reduction. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). If a claim is appealed to the Board on the basis of a reduction only, there is no need to also discuss whether ratings in excess of the reduction are warranted. In this case, the propriety of the reduction for migraine headaches is at issue in this appeal. Accordingly, the Board has recharacterized the issue. Entitlement to restoration of a 30 percent rating for migraine headaches is granted. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Historically, service connection for migraine headaches was granted in an October 2009 rating decision. An initial 30 percent rating was assigned, effective February 16, 2009. In a September 2014 rating decision, reduction of the Veteran's rating for migraine headaches from 30 percent to 0 percent was proposed based on a finding that the Veteran failed to appear for reexamination without good cause. In a December 2015 rating decision, the Veteran's rating for migraine headaches was reduced from 30 percent to 0 percent, effective January 1, 2016. In a December 2015 correspondence, the Veteran disagreed with the rating reduction, asserting that he had not received any notification regarding a scheduled examination. In consideration of the Veteran's statement, the AOJ afforded the Veteran a VA headaches examination in May 2016. In a May 2016 SOC, the AOJ determined that a compensable rating was not warranted, based solely on the May 2016 VA examination report. The Veteran's 30 percent rating for migraine headaches had been in effect for more than 5 years at the time of the rating reduction (from February 16, 2009 to January 1, 2016). As such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. See 38 C.F.R. § 3.344 (c). Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased rating, in which it is the Veteran's responsibility to show the disability has worsened. 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). As noted above, as of the effective date of the reduction, the 30 percent rating for the Veteran's migraine headaches under Diagnostic Code 8100 had been in effect for more than 5 years; hence, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. A review of the record does not show that the RO considered, or even provided notice of 38 C.F.R. § 3.344, in the September 2014 proposal to reduce, the December 2015 effectuation of the reduction, or the May 2016 SOC. Moreover, the RO did not address whether the May 2016 VA examination was as full and complete as the examination on which the 30 percent rating was established, or whether the evidence demonstrated material improvement that would be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344 (a); Kitchens v. Brown, 7 Vet. App. 320 (1995). (Continued on the next page) The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, when applicable, renders a rating reduction void ab initio. Such an omission is error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292. See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, given the facts noted above, the 30 percent rating assigned for migraine headaches is restored, effective January 1, 2016. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.