Citation Nr: 18160367
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-25 900
DATE:	December 26, 2018
ORDER
A 50 percent rating for migraine headache is restored, effective October 24, 2014. 
FINDING OF FACT
1. In a November 2014 rating decision, the RO reduced the rating for the Veteran’s migraine headaches from 50 percent disabling to 30 percent disabling from October 24, 2014.  The 50 percent rating had been in effect less than 5 years.
2. The RO was not required to notify the Veteran of the proposed rating reduction in accordance with 38 C.F.R. § 3.105(e) because the action did not result in a reduction of compensation payments being made at that time.
3. At the time of the reduction, there was reasonable doubt as to whether there was improvement in the Veteran’s service-connected migraine headaches.
CONCLUSION OF LAW
The criteria to reduce the disability rating assigned for service-connected migraine headaches from 50 percent to 30 percent effective October 24, 2014, have not been met; restoration is warranted. 38 U.S.C.§ 1155 (West 2002); 38 C.F.R. §§ 3.105 (e), 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Codes 8100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the Army National Guard from October 1, 2008, to January 15, 2009, from October 1, 2009, to September 30, 2010, and from October 4, 2010, to August 3, 2012.  This matter is on appeal from a November 2014 rating decision.
The November 2014 rating decision reducing the Veteran's rating for migraine headaches from 50 percent to 30 percent was improper, and the original rating is restored.
In this case, in a September 2013 rating decision, the Veteran was granted an initial compensable rating of 50 percent for migraine headaches, effective August 4, 2012, based on a June 2013 VA examination indicating very frequent prostrating and prolonged attacks of migraine headache pain that impacted her ability to work. 
In September 2014, the Veteran submitted a new claim seeking a total disability rating based on unemployability. In the process of adjudicating this claim, the Veteran underwent a new VA examination for her headaches in October 2014 and, based on the results of this new examination, the RO issued a new rating decision in November 2014 reducing the Veteran's rating for her migraine headaches from 50 percent to 30 percent.
Where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at his 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 should be continued at the present level. Id. 
VA’s General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable. It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable. See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating). 
The Board notes that a rating proposing a reduction was not issued.  However, in this regard, the Veteran was receipt of a combined 90 percent disability rating from August 4, 2012.  The November 2014 rating decision, which reduced the rating for migraine headaches from 50 percent to 30 percent, effective October 24, 2014, also granted increased evaluations for cervical intervertebral disc syndrome and sciatic radiculopathy of the bilateral lower extremities, each from 10 percent to 20 percent disabling, effective April 1, 2014. At the same time, the RO continued several other disability evaluations and decreased the evaluation for bulging discs, T7-10, form 20 percent to 10 percent, October 24, 2014.  That decision resulted in a combined evaluation of 100 percent from August April 1, 2014, and a 90 percent evaluation from October 24, 2014. Although there was approximately a six-month period of increase in compensation from April 2014 to October 2014, this was accomplished in the same rating decision as the reduction, and as such, there was no decrease in compensation payments currently being made. In other words, as the Veteran had not been in receipt of “payment” of compensation benefits at the 100 percent rate, based on the increased ratings assigned for cervical intervertebral disc syndrome and sciatic radiculopathy of the bilateral lower extremities, at the time of the November 2014 rating decision, the reduction in the rating for migraine headaches did not “result in a reduction or discontinuance of compensation payments currently being made.” Thus, the Veteran was “not subjected to economic hardship during the course of the appeal” Id. Accordingly, the procedural protections of 38 C.F.R. § 3.105(e) are not applicable.
Additional requirements are set forth in 38 C.F.R. § 3.344, but these other provisions only apply to ratings that have continued for long periods at the same level (meaning 5 years or more). This is not the situation here since the 50 percent rating for the Veteran’s migraine headaches was assigned as of August 4, 2012, and only continued until October 24, 2014, less than the required 5 years. Hence, compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) is not mandated.
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 disabilities 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. Moreover, 38 C.F.R. § 4.13 provides: “When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.” 
Thus, VA is required in any rating-reduction case “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (“[t]hese requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”). Furthermore, 38 C.F.R. § 4.10 provides that “[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment”, and 38 C.F.R. § 4.2 directs that “[e]ach disability must be considered from the point of view of the veteran working or seeking work.” “Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that 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; see also 38 C.F.R. §§ 4.2, 4.10.
Based on the results of the October 2014 VA examination, particularly the examiner’s findings that the Veteran’s headaches were manifested by characteristic prostrating attacks occurring on average once a month over the last several months, the RO reduced the disability rating for migraine headaches from 50 to 30 percent in a November 2014 rating decision.
Upon review of the evidence of record, reduction of the disability rating for migraine headaches from 50 percent to 30 percent was not proper, and a restoration of the 50 percent rating is warranted. The Board finds that the October 2014 VA examination was inadequate for the purpose of a rating reduction. Although the examiner indicated that the Veteran had characteristic prostrating attacks of migraine/headache pain once every month, the VA examiner did not appear to consider the Veteran’s medical history or explain how she determined that the Veteran only had prostrating attacks once a month.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). Significantly, at the time of the examination, the Veteran reported that she still had headaches two to three times a week. Regarding any possible decrease in headaches, she explained that although she used to have headaches five to six days a week, she started Botox injections, which helped control the headaches until the Botox wore off and she would get headaches again.  She reported that in the past nine months, she underwent three Botox injections and required injections every twelve weeks. She still experienced pulsating or throbbing head pain on both sides of the head that worsened with physical activity.  She also exhibited associated symptoms of nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner also determined that the Veteran’s headache condition impacted her ability to work in that she could work in a sedentary or physical job if she was allowed to have breaks or time off due to headache exacerbations. 
The Board finds that the evidence of record at the time of the November 2014 rating decision was not sufficient to establish sustained improvement of the Veteran’s migraine headaches.  If anything, the evidence demonstrated that the Veteran’s headaches progressed to the point that she required Botox injections every twelve weeks and still had headaches two to three times a week and possibly more when the Botox injections wore off.  Additionally, in September 2014, the Veteran filed a VA form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicating that she last worked full-time in August 2012 and that her migraine headaches, along with other service connected conditions, prevented her from securing any substantially gainful occupation.  Because the reduction determination was based on an inadequate examination and the evidence of record at the time of the November 2014 rating decision was not sufficient to establish sustained improvement in the Veteran’s migraine headaches, the Board finds that the reduction was improper.
 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Crohe, Counsel 

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