Citation Nr: 22018795 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-18 882A DATE: March 30, 2022 ORDER Restoration of the 10 percent disability rating for traumatic brain injury (TBI), effective June 18, 2015, is granted, subject to the regulations governing the payment of monetary awards. Restoration of the 50 percent disability rating for migraine headaches, effective August 1, 2016, is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The evidence fails to demonstrate improvement in the severity of the Veteran's TBI. 2. The evidence fails to demonstrate improvement in the severity of the Veteran's migraine headaches. CONCLUSIONS OF LAW 1. The reduction in the rating for TBI from 10 percent to noncompensable, effective June 18, 2015, was improper and restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.124a, Diagnostic Code 8045 (2021). 2. The reduction in the rating for migraine headaches from 50 percent to 30 percent, effective August 1, 2016, was improper and restoration of the 30 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.124a, Diagnostic Code 8100 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1989 to March 1990 and April 1992 to September 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2015 and May 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in October 2021. A transcript of the hearing is of record. Rating Reductions In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing, provided that the request is received within 30 days from the date of the notice. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 C.F.R. §§ 3.105(e); 3.500(r). Prior to the reductions in this case, the Veteran's 10 percent rating for her TBI had been in effect since July 10, 2014. Thus, the rating had been in effect for less than five years. Her 50 percent rating for her migraine headaches had been in effect since May 6, 2011, so in excess of five years at the time of the May 11, 2016 rating decision that reduced the Veteran's rating. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefit recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which set forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in a disability will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. 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 Brown, 5 Vet. App. at 420-21; 38 C.F.R. § 3.344(c). In considering whether a reduction was proper, the Board must focus on the evidence of record available to the Agency of Original Jurisdiction (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 had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by the evidence, that a rating reduction is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). "When any change in evaluation is made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or use of descriptive terms." 38 C.F.R. § 4.13. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. TBI The Veteran and her representative contend the reduction in the rating from 10 percent to noncompensable effective June 18, 2015 for the Veteran's service-connected TBI was improper. See April 2018 VA Form 9, Appeal to Board of Veterans' Appeals. The Veteran filed a claim for an increased rating for her service-connected TBI in April 2015. Subsequently, in a July 2015 rating decision, the AOJ reduced the rating from 10 percent to noncompensable effective June 18, 2015. The Veteran's TBI is rated under Diagnostic Code 8045. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of impairment requires evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected with a cognitive impairment, and some functions may be affected more severely than others. Symptoms may fluctuate in severity from day to day. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate subjective residual TBI symptoms, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, they are to separately rate any residual with a distinct diagnosis that may be rated under another Diagnostic Code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are to rate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Adjudicators are to rate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to rate under the most appropriate Diagnostic Code. Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating and combine under § 4.25 the ratings for each separately rated condition. The rating assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the rating for a single condition for purposes of combining with other disability ratings. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100 percent rating if "total" is the level of evaluation for one or more facets. If no facet is rated as "total," adjudicators are to assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent rating if 3 is the highest level of evaluation for any facet. Id. As is noted above, in rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). However, in this case, the procedural requirements of 38 C.F.R. § 3.105(e) are not applicable because the July 2015 rating decision did not reduce the Veteran's overall current compensation payments. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). In Tatum, the United States Court of Appeals for Veterans Claims (Court) explained that the plain meaning of 38 C.F.R. § 3.105(e) was that such notice is warranted only where there is a reduction in compensation payments currently being made. Id. Similarly, in the precedential opinion VAOPGCPREC 71-91 (Nov. 1991), the General Counsel for VA held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. Here, in a July 2015 rating decision, the AOJ reduced the Veteran's rating for her TBI from 10 percent to noncompensable effective June 18, 2015. As described in the July 2015 notification letter to the Veteran, the reduction in the Veteran's TBI disability did not result in a reduction in the Veteran's overall combined evaluation. Therefore, the Veteran's combined evaluation for compensation was 90 percent prior to and after June 18, 2015 when the reduction became effective. As such, the procedural requirements of 38 C.F.R. § 3.105(e) are not applicable in this case. See Tatum, 24 Vet. App. at 145. Irrespective of the procedural requirements, as is detailed below, the Board is restoring the Veteran's 10 percent rating for TBI because the evidence persuasively weighs against a finding that there was improvement in the severity of the Veteran's TBI. A review of the claims file indicates that the decision to reduce the Veteran's rating from 10 percent to noncompensable for her TBI was predicated on the findings in June 2015 VA examinations. In a June 2015 TBI VA examination report, the VA examiner opined that the Veteran met the criteria for TBI, but the examiner also stated that the Veteran's "memory and other cognitive symptoms are more attributable to her PTSD." The June 2015 TBI VA examination report reflects the 10 facets of TBI related to cognitive impairment and subjective symptoms were normal. Furthermore, in the June 2015 PTSD VA examination report, the examiner noted that the Veteran's "TBI contributes nothing to her level of disability." In an August 2014 rating decision, the AOJ assigned the Veteran's 10 percent rating based on a July 2014 VA examiner's opinion attributing the Veteran's symptoms to her service-connected PTSD. The AOJ also noted in the August 2014 rating decision that it was assigning a 10 percent rating for the Veteran's TBI based on a finding of a level of severity of "1" in the facet of visual spatial orientation, which was assessed in a January 2013 VA examination. While the June 2015 TBI VA examination report reflects that the examiner opined that the Veteran's issues with recall and getting lost at times were attributable to her PTSD, the same examiner also opined that the Veteran's "memory and other cognitive symptoms are more attributable to her PTSD." (emphasis added). The latter characterization indicates that these symptoms are in part attributable to the TBI. Furthermore, the same examiner noted that the Veteran's TBI was stable at the time of the examination. Therefore, the evidence does not show that the Veteran's TBI improved. Aside from the 2015 VA examiners attributing the Veteran's symptoms to her PTSD, the June 2015 TBI examination report, in part the basis for the reduction, reflects that the Veteran's TBI remained stable at the time of the examination. A review of the June 2015 TBI VA examination report illustrates that the examiner was comparing her symptoms of TBI at her prior TBI VA examination in January 2013 in making the statement that the Veteran's TBI remained stable at the time of the June 2015 VA examination. Notably, the January 2013 VA examination was the basis for the assignment of the 10 percent rating for her TBI. Furthermore, although the June 2015 TBI VA examiner opined that the Veteran's issues with recall and getting lost at times were attributable to her PTSD, the examiner's further opinion within the same examination report indicates that the Veteran's memory and cognitive symptoms are at least in part attributable to her TBI. Thus, the opinions are inconsistent and the examination report reflecting change was not based upon a thorough examination. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. 413. Given the above, the Board finds that the overall weight of the evidence does not show improvement in the Veteran's service-connected TBI. Therefore, the Board cannot conclude that the weight of the evidence shows improvement that is reasonably certain to be maintained under the ordinary conditions of life and work. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. 413. As such, the reduction in the 10 percent rating for TBI was improper, and the rating should be restored effective June 18, 2015. 2. Migraine Headaches The Veteran and her representative contend the reduction in the rating from 50 percent to 30 percent, effective August 1, 2016, for the Veteran's service-connected migraine headaches was improper. See April 2018 VA Form 9, Appeal to Board of Veterans' Appeals. The Veteran filed a claim for an increased rating for her service-connected migraine headaches in April 2015. Subsequently, in a July 2015 rating decision, the AOJ proposed to reduce the rating for the Veteran's migraine headaches from 50 percent to noncompensable, and the AOJ reduced the rating to 30 percent effective August 1, 2016 in a May 2016 rating decision. The Veteran's migraine headaches are rating under Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating (which is the maximum schedular rating available under Code 8100) is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. As is noted above, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). In this case, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were properly carried out by the AOJ. A July 2015 rating decision proposed to reduce the rating for the Veteran's service-connected migraine headaches from 50 percent to noncompensable. In a July 2015 letter, the AOJ informed the Veteran of the proposed rating reduction and attached a copy of the July 2015 rating decision which set forth all the material facts and reasons for the reduction. The letter also informed the Veteran that she could submit additional evidence to show that the change should not be made, and that if no additional evidence was received within 60 days, her disability rating would be reduced. The Veteran was also advised that she could request a hearing to present evidence or argument on any point in her claim, and that she had 30 days to request such a hearing in order to have her benefits continued at the prior rate until the hearing was conducted; if a hearing was requested after 30 days, the AOJ may continue with the proposed action. The Veteran requested a hearing to present evidence or argument in a July 2015 written statement. The requested hearing was held in April 2016. Thereafter, the AOJ issued the May 2016 rating decision reducing the Veteran's rating from 50 percent to 30 percent, effective August 1, 2016. A review of the claims file indicates that the decision to reduce the Veteran's rating from 50 percent to 30 percent for her migraine headaches was predicated on the findings in an April 2016 VA examination, which the AOJ found did not reflect that the Veteran's migraine headaches were characteristic of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In a December 2012 rating decision, the AOJ originally assigned the Veteran's 50 percent rating based on the findings of a May 2012 VA examination. The December 2012 rating decision reflects that the Veteran's migraine headaches were characteristic of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Notably, the May 2012 VA examination report does not explicitly reflect that the Veteran's migraine headaches are productive of severe economic inadaptability. Although the May 2016 rating decision indicates that the April 2016 VA examination report does not reflect that the Veteran's migraine headaches are characteristic of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the examination report does state that the Veteran has very frequent prostrating and prolonged attacks of migraine headache pain. It also reflects that the Veteran had characteristic prostrating attacks more frequently than once per month. Furthermore, the symptoms of her migraines were pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, and pain worsens with physical activity. Non-headache symptoms were nausea, sensitivity to light, sensitivity to sound, and changes in vision. The duration of the typical head pain was more than two days. The examiner also indicated that headaches resulted in poor concentration, poor attention, and an inability to follow simple instructions, or perform activities requiring physical exertion such as heavy lifting. Furthermore, the Veteran reported taking 75 milligrams of Amitriptyline and doing Botox injections every three months for her migraines. The May 2012 VA examination, the basis for the 50 percent rating, reflects that the Veteran had characteristic prostrating attacks more frequently than once per month. The examination report also reflects that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. Furthermore, the symptoms of her migraines were pulsating or throbbing head pain, pain localized to one side of the head, and pain worsens with physical activity. Non-headache symptoms were nausea and vomiting. The duration of the typical head pain was less than one day. The Veteran estimated that she had missed about four to five weeks of work in the past year due to a combination of migraine headaches and other disabilities. In addition, the Veteran reported treating her migraines with over-the-counter Tylenol and nonsteroidal anti-inflammatory drugs. Therefore, a review of the examination reports above illustrates that the evidence does not show that the Veteran's migraine headaches improved. A review of the April 2016 VA examination report reflects that the overall symptomatology of the Veteran's migraine headaches are, if anything, at a higher level of severity than what is reflected in the May 2012 VA examination report. Notably, the April 2016 VA examination report reflects that the duration of the typical head pain was more than two days whereas the May 2012 VA examination report reflects that the typical head pain was less than one day. Furthermore, the April 2016 VA examination report reflects that the Veteran had increased her medication from May 2012 to April 2016 for her migraine headaches. In addition, the evidence does not show that there was actual improvement in the Veteran's migraine headaches under ordinary conditions of life and work. The April 2016 VA examiner found that the Veteran's migraine headaches caused functional impact in the form of poor concentration, poor attention, and an inability to follow simple activities. Moreover, the Veteran indicated at her April 2016 hearing that she was having headaches every day prior to her medications being increased. (Continued on the next page) Given the above, the Board finds that the overall weight of the evidence does not show improvement in the Veteran's service-connected migraine headaches. Therefore, the Board cannot conclude that the weight of the evidence shows improvement that is reasonably certain to be maintained under the ordinary conditions of life and work. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. 413. As such, the reduction in the 50 percent rating for migraine headaches was improper, and the rating should be restored, effective August 1, 2016. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.