MIGRAINE

LESLEY A. REIN · 2025 · Case ID: A25047120

MIXED

Summary

The Veteran, a Veteran who served from September 1985 to January 1987 and February 1995 to May 2000, appeals rating decisions concerning migraines, bilateral hearing loss, tinnitus, depression, and asthma. The Board granted service connection for migraines, finding they were aggravated by service-connected tinnitus and asthma, resolving reasonable doubt in the Veteran's favor. The Board also granted a 70% rating for depression, finding the Veteran's symptoms approximated the criteria for this rating, again resolving reasonable doubt in his favor. The Board found the reduction of the asthma rating from 30% to 10% improper, restoring the 30% rating due to insufficient evidence of material improvement and applying the benefit of the doubt. Service connection for bilateral hearing loss was denied, as the audiometric results fell within noncompensable criteria, and the Board found the evidence weighed against a service connection. The claim for an increased rating for tinnitus was denied, as the 10% rating is the maximum schedular rating, and the Veteran's employment limitations were attributed to his service-connected depression. The Board remanded claims for service connection for erectile dysfunction (ED) and for Total Disability based on Individual Unemployability (TDIU), citing duty to assist errors and the interconnectedness of the issues.

Rationale

Migraines aggravated by service-connected tinnitus and asthma; Benefit of the doubt resolved in Veteran's favor; Private medical opinion found most probative

Special Benefit

TDIU

Docket No.

220223-222335

Full Decision Text

Citation Nr: A25047120
Decision Date: 05/27/25 Archive Date: 05/27/25

DOCKET NO. 220223-222335
DATE: May 27, 2025

ORDER

Entitlement to service connection for migraines is granted.

Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a rating of 70 percent, but no higher, for depression is granted.

Entitlement to restoration of a 30 percent rating for asthma, beginning August 1, 2020, is granted.

REMANDED

Entitlement to service connection for erectile dysfunction (ED) is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in favor of the Veteran, his migraines were aggravated by his service-connected tinnitus and asthma disabilities.

2. For the entire period on appeal, the Veteran's right ear hearing impairment was, at worst, Level I, and his left ear hearing impairment was, at worst, Level IV.

3. The Veteran receives the maximum rating allowed for tinnitus and there is no evidence that his symptoms are so exceptional or unusual that they render the schedular criteria inadequate, or its application impractical, such that referral for extraschedular consideration is required.

4. Resolving reasonable doubt in favor of the Veteran, for the entire period on appeal, the symptoms of his depression were manifested by occupational and social impairment with deficiencies in most areas.

5. At the time of the reduction, the Veteran's 30 percent rating for his service-connected asthma had been in effect for at least 5 years, and the most probative evidence showed that he did not have material improvement that was reasonably certain to be maintained under the ordinary conditions of life.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for migraines, to include as due to service-connected tinnitus, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2024).

2. The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2024).

3. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 3.321, 4.7, 4.87, Diagnostic Code 6260 (2024).

4. The criteria for a rating of 70 percent, but no higher, for depression have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2024).

5. The reduction in rating from 30 percent to 10 percent, effective August 1, 2020, for the Veteran's asthma was improper. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 6602 (2024).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active air service from September 1985 to January 1987 and February 1995 to May 2000.

This case comes before the Board of Veterans' Appeals (Board) on appeal of Higher-Level Review (HLR) rating decisions issued in March 2021, April 2021, and May 2021, as well as a rating decision issued in January 2022.

The March 2021 HLR rating decision relates to the issues of increased ratings for depression and a bilateral hearing loss disability. The Veteran was originally granted service connection for depression and assigned a 50 percent rating, effective September 20, 2019, in a December 2019 rating decision. In that same December 2019 rating decision, the Veteran was granted service connection for left ear hearing loss, which was evaluated with his service-connected right ear hearing loss, to establish a bilateral hearing loss disability that was assigned a noncompensable (0 percent) rating, effective October 16, 2019. In November 202
1, and May 2021, as well as a rating decision issued in January 2022.

The March 2021 HLR rating decision relates to the issues of increased ratings for depression and a bilateral hearing loss disability. The Veteran was originally granted service connection for depression and assigned a 50 percent rating, effective September 20, 2019, in a December 2019 rating decision. In that same December 2019 rating decision, the Veteran was granted service connection for left ear hearing loss, which was evaluated with his service-connected right ear hearing loss, to establish a bilateral hearing loss disability that was assigned a noncompensable (0 percent) rating, effective October 16, 2019. In November 2020, the Veteran filed a VA Form 20-0996, Decision Review Request: HLR, and requested a review of the December 2019 rating decision. In March 2021, the agency of original jurisdiction (AOJ) issued the March 2021 HLR rating decision on appeal.

The April 2021 HLR rating decision relates to the issues of an increased rating for tinnitus and entitlement to a TDIU. The Veteran was originally denied a rating in excess of 10 percent for his service-connected tinnitus and entitlement to a TDIU in a March 2020 rating decision. In January 2021, the Veteran filed a VA Form 20-0996, Decision Review Request: HLR, and requested a review of the March 2020 rating decision. In April 2021, the AOJ issued the April 2021 HLR rating decision on appeal.

The May 2021 HLR rating decision relates to the issue of entitlement to restoration of a 30 percent rating for the Veteran's service-connected asthma. The Veteran's service-connected asthma was originally decreased from a 30 percent rating to a 10 percent rating, effective August 1, 2020, in a May 2020 rating decision. In March 2021, the Veteran filed a VA Form 20-0996, Decision Review Request: HLR, and requested review of the May 2020 rating decision. In May 2021, the AOJ issued the May 2021 HLR rating decision on appeal.

In a June 2020 rating decision, the Veteran was denied entitlement to service connection for headaches and ED. In March 2021, the Veteran filed a VA Form 20-0996, Decision Review Request, HLR, and requested review of the June 2020 rating decision. In a May 2021 rating decision, it was determined that a duty to assist error had occurred prior to the issuance of the June 2020 rating decision and that additional development efforts would be undertaken, following which the claims for service connection for headaches and ED would be readjudicated. The January 2022 rating decision on appeal was issued for the readjudicated issues of entitlement to service connection for migraines and ED.

In February 2022, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) and elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the December 2019, March 2020, May 2020, and January 2022 AOJ rating decisions on appeal, for the respective issues, as well as any evidence submitted by the Veteran or their representative with, or within 90 days from receipt of, the VA Form 10182. 38 CF.R. § 20.3030. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for ED and entitlement to a TDIU, any evidence that the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2
could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Lastly, the Board notes that the Veteran was previously represented by private attorney, J. Michael Woods. However, on September 27, 2023, VA received from the Veteran a newly submitted VA Form 21-22a appointing Harry J. Binder, Attorney, as his new representative. The Board recognizes this change in representation.

Service Connection - Migraines

The Veteran asserts that his claimed headaches are related to his service-connected tinnitus.

The Veteran's service treatment records (STRs) reveal that he was assessed to have headaches in April 1986. A May 1986 treatment note documented the Veteran's report of headaches for a period of six weeks; at that time, he was assessed to have headaches due to prolonged exposure to high noise. Another May 1986 treatment note documented that the Veteran had a diagnosis of induced bitemporal headaches. A November 1986 treatment note revealed that the Veteran had severe noise related headaches.

A September 2019 private medical opinion noted that the Veteran suffered from headaches.

During a May 2020 VA examination, the Veteran reported that that the onset of his headaches was in 1999. The Veteran also indicated that his headaches occurred with his tinnitus. At that time, the examiner assessed that the Veteran had a diagnosis of migraines. However, the examiner opined that it was less likely than not that the Veteran's migraines were proximately due to or the result of his service-connected tinnitus. The examiner reasoned that the Veteran's post-service records were silent, except for a letter from a medical doctor that the Veteran had headaches since service. The examiner also listed several risk factors for the transformation from episodic to chronic migraine, to include psychiatric disorders. Additionally, the examiner noted that there was no literature stating that tinnitus directly caused migraines. The examiner failed to provide an opinion of whether the Veteran's migraines were aggravated by his service-connected disabilities at that time.

In May 2022, the Veteran submitted a private disability benefits questionnaire (DBQ) for headaches. At that time, the examining medical doctor, Dr. M.B., noted that the Veteran had a diagnosis of migraines. Additionally, Dr. M.B. opined that it was at least as likely as not that the Veteran's migraine headaches began in service, had continued uninterrupted to the present, and that his service-connected tinnitus and asthma had proximately caused and permanently aggravated his headaches. Dr. M.B. reasoned that migraines and asthma are comorbid chronic disorders with episodic attacks thought to involve inflammatory and neurological mechanisms. Dr. M.B. also reported that it was known that damage to the auditory system resulting in tinnitus could cause headaches. Further, Dr. M.B. cited to medical literature in support of her conclusions.

The Board initially finds that the May 2020 VA opinion is inadequate for adjudication purposes. In this regard, the Board finds that the medical opinion only addressed secondary service connection through causation but failed to address aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).

In contrast, the Board finds that the May 2022 private medical opinion is the most probative evidence of record. In this regard, the Board finds that Dr. M.B. addressed the relevant evidence of record, to include the Veteran's lay statements, and supported her conclusions with medical literature. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Ultimately, the Board finds that the Veteran has a current diagnosis of migraines and that the most probative evidence of record reveals that his service-connected tinnitus and asthma disabilities permanently aggravate those migraines.

Accordingly, based on the above, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for migraines is warranted. 38 U.S
literature. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Accordingly, based on the above, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for migraines is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Increased Rating - Bilateral Hearing Loss Disability

The Veteran asserts that the symptoms of his bilateral hearing loss disability are worse than what is contemplated by his current assigned rating.

For the entire period on appeal, the Veteran's bilateral hearing loss disability has been assigned a noncompensable (0 percent) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2024).

During a November 2019 VA audiology examination, as to functional impact of his hearing loss, the Veteran asserted that he had a really hard time hearing if he did not wear his hearing aids and that he did not wear his hearing aids in loud restaurants. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). At that time, the Veteran's audiometric test results were as follows:

Hertz 1000 2000 3000 4000 Average

Right 40 50 50 65 51

Left 45 60 65 70 60

The Veteran's speech discrimination scores were 94 percent in the right ear and 82 percent in the left ear. Applying those values to the rating criteria results in numeric designations of Level I in the right ear and Level IV in the left ear. 38 C.F.R. § 4.85, Table VI. Additionally, application of those levels of hearing impairment to Table VII, under 38 C.F.R. § 4.85, results in a noncompensable (0 percent) rating. 38 C.F.R. § 4.85, Diagnostic Code 6100.

In this case, based on the evidence above, the Board finds that the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability. As noted above, the hearing impairment in his right ear was, at worst, Level I, and in his left ear was, at worst, Level IV. Those results fall squarely within the criteria for a noncompensable rating. As such, a higher rating is not warranted at this time. 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Board acknowledges the Veteran's difficulty with hearing without his hearing aids. In fact, the Board finds that the Veteran is competent to report difficulty with his hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran's statements are credible.

However, the Board emphasizes that disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations that result from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Additionally, the rating criteria contemplates speech reception thresholds and the ability to hear spoken words through the Maryland CNC speech discrimination test. Thus, the Veteran's main complaint, of reduced hearing acuity and clarity, is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017); see also Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to an initial compensable rating for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5017(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Increased Rating - Tinnitus

The Veteran asserts that the symptoms of his tinnitus are worse than what is contemplated by his currently assigned rating.

For the entire period on appeal, the
kin, 28 Vet. App. 366 (2017).

Increased Rating - Tinnitus

The Veteran asserts that the symptoms of his tinnitus are worse than what is contemplated by his currently assigned rating.

For the entire period on appeal, the Veteran has been assigned a 10 percent disability rating for his tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260.

The Board initially notes that a 10 percent rating is the maximum schedular rating allowed for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260.

In a June 2019 treatment note the Veteran reported that his tinnitus had become much more noticeable to the point that it caused significant stress and anxiety.

In a July 2019 treatment note, the Veteran reported that he had to retire early due to his tinnitus.

In November 2019, a VA Psychiatrist assessed that there was a high degree of medical certainty that the Veteran was not able to maintain or sustain any substantially gainful employment due to exacerbation of his mood and anxiety disorders as a direct result of his service-connected tinnitus.

In a November 2019 opinion, a private psychologist assessed that the Veteran would be unable to find and sustain meaningful employment due to his tinnitus. At that time, the private psychologist noted that the Veteran had difficulty maintaining concentration, hearing others in a room, and separating noises from conversation.

In this case, the Board ultimately finds that there is no evidence showing that the Veteran's disability picture is exceptional or unusual as to require an extraschedular evaluation for his service-connected tinnitus. In this regard, the Veteran's reported severity of the ringing in his ears is fully contemplated by the applicable rating criteria. Additionally, the Board finds that the evidence primarily shows that the Veteran's psychiatric symptoms (i.e., stress, anxiety, depression, exacerbations of mood, and inability to maintain concentration) interfered with his employment more than the sole symptom of ringing or noise in his ears. Therefore, although the Veteran's tinnitus, by itself, is only awarded a 10 percent rating, the residuals of his tinnitus are adequately compensated by the rating assigned for his service-connected depression, which contemplates occupational impairment. The Board notes that the Veteran's service-connected depression was initially awarded based on a finding that it was secondary to his service-connected tinnitus. As such, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. 38 C.F.R. § 3.321 (2020); Thun v. Peake, 22 Vet. App. 111 (2008).

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable, as the evidence is not in approximate balance, and entitlement to a rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Increased Rating - Depression

The Veteran asserts that the symptoms of his depression are worse than what is contemplated by his currently assigned rating.

For the entire period on appeal, the Veteran has been assigned a 50 percent rating for his depression under 38 C.F.R. § 4.130, Diagnostic Code 9434.

A June 2019 medical note documented the Veteran's report that he felt anxious about his tinnitus. At that time, the Veteran also reported that his depression and anxiety were manageable, and that he did not really feel depressed.

Later, in a June 2019 VA audiology note, the Veteran reported that his tinnitus had become much more noticeable to the point that it caused significant stress and anxiety.

In a September 2019 treatment note, the Veteran endorsed depression and anxiety. Additionally, the Veteran reported that he had trouble reading, concentrating, focusing, and making decisions when his symptoms were severe. At that time, a VA psychiatrist assessed that there was a high degree of medical certainty that the Veteran was not able to maintain or sustain any substantially gainful employment due to exacerbation of his mood and anxiety disorders as a direct result of his service-connected tinnitus.

During a November 2019 VA examination, the Veteran reported that
not really feel depressed.

Later, in a June 2019 VA audiology note, the Veteran reported that his tinnitus had become much more noticeable to the point that it caused significant stress and anxiety.

During a November 2019 VA examination, the Veteran reported that he was divorced and, at that time, in a partnered relationship cohabitating. At that time, the examiner assessed that the Veteran's symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or worklike setting.

The Board finds that, based on the evidence above, the Veteran is entitled to a rating of 70 percent, but no higher, for his depression for the entire period on appeal. In this regard, the evidence of record reveals that the severity of his symptoms more closely approximate social and occupational impairment with deficiencies in most areas. Specifically, the evidence of record reveals that the Veteran's symptoms included difficulty adapting to stressful circumstances, depression, and exacerbation of mood and anxiety that was assessed to render him unable to maintain or sustain employment. Therefore, when the Board considers the Veteran's disability picture as a whole, as opposed to symptoms in an isolated treatment note or report, his symptoms more closely approximate those associated with a 70 percent rating. Therefore, entitlement to a rating of 70 percent, but no higher, is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9434.

The Board acknowledges that the VA examination report, treatment notes, and lay statements do not account for each symptom associated with a 70 percent rating for a psychiatric disability for the entire period on appeal. However, the enumerated symptoms under the schedule for rating mental disorders are not exhaustive and are only intended to serve as examples and degrees of the symptoms, or their effects, that would justify a particular disability rating. Therefore, a finding that the Veteran has social and occupational impairment with deficiencies in most areas is sufficient to support a 70 percent rating for the relevant period. Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002); see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (requiring VA to "engage in a holistic analysis" of the claimant's symptoms to determine the proper disability rating).

Consideration has been given to assigning a higher rating. However, there is no indication from the record that the Veteran's depression resulted in total social and occupational impairment. In this regard, the Board finds that the Veteran was not shown to have any gross impairment in thought process or communication, as he was consistently noted as having normal thought process and coherent and clear speech. Additionally, the Board notes that the evidence of record does not indicate delusions, hallucination, disorientation to time or place, or persistent danger of hurting himself or others. As such, a higher rating for his depression is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9434.

Accordingly, the Board finds that the evidence for and against the claim of entitlement to a rating of 70 percent, but no higher, for the Veteran's depression is at least in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to such rating is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Restoration of a 30 Percent Rating for Asthma

The Veteran asserts that the rating for his asthma should not have been reduced from 30 percent to 10 percent, beginning August 1, 2020, as his asthma has not improved.

In general, regulations "impose a clear requirement that VA rating reduction...be based upon a review of the entire history of the Veteran's disability." 38 C.F.R. §§ 4.1, 4.2, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). To warrant a reduction it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§
from 30 percent to 10 percent, beginning August 1, 2020, as his asthma has not improved.

In general, regulations "impose a clear requirement that VA rating reduction...be based upon a review of the entire history of the Veteran's disability." 38 C.F.R. §§ 4.1, 4.2, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). To warrant a reduction it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; Faust v. West, 13 Vet. 342, 349 (2000). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13.

In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than 5 years. 38 C.F.R. § 3.344(a)-(c). In this case, the 30 percent rating for the Veteran's asthma was awarded in a November 2017 rating decision and assigned an effective date of April 11, 2017. As such, those benefits are applicable in this case.

There are also specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted, and the lower evaluation would result in a reduction or discontinuance of the compensation payments being made at the time, the AOJ must issue a rating decision proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response, and the AOJ must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, the effective date of the reduction will be the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e).

In this case, the rating reduction decreased the Veteran's combined evaluation from 70 percent to 60 percent. Since the Veteran's compensation payments were reduced, the procedural protections outlined in 38 C.F.R. § 3.105(e) apply and must be met.

A rating decision was issued in March 2020, which proposed that the 30 percent rating for the Veteran's asthma be reduced to 10 percent. The Veteran was mailed a copy of that rating decision and was informed that he had 60 days to present evidence and a right to a predetermination hearing on March 9, 2020. The Veteran did not request a predetermination hearing. On May 13, 2020, the AOJ issued a rating decision that reduced the rating for the Veteran's asthma from 30 percent to 10 percent, effective August 1, 2020. Considering the foregoing, the Board finds that the procedural protections of 38 C.F.R. § 3.105(e) have been met. Therefore, the Board must determine whether the rating reduction was proper.

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). It is VA's burden to establish by the evidence of record that the rating reduction should be sustained, with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b).

Under Diagnostic Code 6602, a 10 percent rating is warranted for Forced Expiratory Volume in One Second (FEV-1) of 71
.R. § 3.105(e) have been met. Therefore, the Board must determine whether the rating reduction was proper.

Under Diagnostic Code 6602, a 10 percent rating is warranted for Forced Expiratory Volume in One Second (FEV-1) of 71- to 80-percent predicted, or; the ratio of Forced Expiratory Volume in One Second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, Diagnostic Code 6602.

A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or bronchodilator therapy, or; inhalational anti-inflammatory medication.

A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.

A 100 percent rating is warranted for FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; that requires daily use of systemic (oral or parenteral) high-dose corticosteroids or immuno-suppressive medications.

In applying the foregoing criteria, VA regulations provide that post-bronchodilator studies are required when pulmonary function tests (PFTs) are done for disability evaluation purposes except when the result of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). Additionally, when evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Finally, when there is a disparity between the results of different pulmonary function tests (FEV-1, FVC, etc.), so that the level of evaluation would differ depending on which test result is used, the adjudicator should use the test result that the examiner states most accurately reflect the level of disability. 38 C.F.R. § 4.96(d)(6).

Turning to the evidence of record, procedurally, the Veteran was initially assigned a rating of 30 percent, effective April 11, 2017, for his asthma in a November 2017 rating decision. That 30 percent rating was based, primarily, on the findings reported in a September 2017 VA examination.

During a September 2017 VA examination, the Veteran reported the following: that he had become more susceptible to bronchitis, that he had a dry cough and was constantly clearing his airway, that he had tightness in his chest, shortness of breath, and that he wheezed during high intensity activities. At that time, the examiner reported that the Veteran's asthma required intermittent courses or bursts of systemic corticosteroids, specifically one burst in the 12 months prior to the examination. The examiner also noted that the Veteran required daily use of inhalational bronchodilator therapy. Additionally, the examiner reported that the Veteran required the use of intermittent oral bronchodilators and antibiotics, a Z-pack, when his symptoms flared into an infection. Further, the VA examiner reported that a PFT had been performed but that it did not reflect the Veteran's pulmonary function at the time. Pre-bronchodilator PFT results were 100 percent predicted FVC, 93 percent predicted FEV-1, and 94 percent predicted FEV-1/FVC. Post-bronchodilator results were not completed at that time because the Veteran did not have his inhal
months prior to the examination. The examiner also noted that the Veteran required daily use of inhalational bronchodilator therapy. Additionally, the examiner reported that the Veteran required the use of intermittent oral bronchodilators and antibiotics, a Z-pack, when his symptoms flared into an infection. Further, the VA examiner reported that a PFT had been performed but that it did not reflect the Veteran's pulmonary function at the time. Pre-bronchodilator PFT results were 100 percent predicted FVC, 93 percent predicted FEV-1, and 94 percent predicted FEV-1/FVC. Post-bronchodilator results were not completed at that time because the Veteran did not have his inhaler. The VA examiner also did not report which test result most accurately reflected the Veteran's level of disability. However, the VA examiner noted that the Veteran had difficulty with prolonged walking or any type of light activity.

Following receipt of the November 2017 rating decision, the Veteran filed a claim for TDIU as due to his service-connected disabilities, to include asthma, in January 2020. Subsequently, a March 2020 rating decision was issued in which the proposal to decrease the Veteran's asthma was made. The March 2020 proposal to reduce the Veteran's rating for his asthma from 30 percent to 10 percent was based primarily on the findings of a January 2020 VA examination.

During the January 2020 VA examination, the Veteran collectively reported that his condition stayed the same since its onset and that he had a sensation of wheezing and coughing in the morning. The examiner reported that the Veteran's asthma required intermittent use of inhalational bronchodilator therapy. The examiner also reported that the Veteran required the use of antibiotics once per year for acute bronchitis. At that time, the Veteran's pre-bronchodilator PFT results were 93 precent predicted FVC, 89 percent predicted FEV-1, 73 percent predicted FEV-1/FVC, and 81 percent predicted DLCO. Additionally, post-bronchodilator results were 107 percent predicted FVC, 104 percent predicted FEV-1, and 74 percent predicted FEV-1/FVC. Further, the examiner assessed that FEV-1/FVC most accurately reflected the Veteran's level of disability.

As noted above, the comparison point to determine whether a reduction is warranted is generally, the last examination on which the rating at issue was assigned. Hohol v. Derwinski, 2 Vet. App. 169, 172-173 (1992). In this case, as explained below, the Board finds that the evidence of record, after the November 2017 rating decision, failed to show that any demonstrated improvement actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work.

In this regard, the Board finds the Veteran's pre-bronchodilator test results during the January 2020 VA examination were worse than the pre-bronchodilator test results from the September 2017 VA examination. Additionally, the Veteran was still found to require antibiotics for flare-ups of an infection (e.g., bronchitis) during both the September 2017 and January 2020 VA examinations. Further, the Board finds that the Veteran still ultimately required inhalational bronchodilator therapy during both the September 2017 and January 2020 VA examinations, albeit at a decreased frequency (i.e., daily versus intermittent). The Board also notes that while the January 2020 VA examiner reported intermittent use of the inhalational bronchodilator therapy, there was no actual number or range to reflect how many times per week, month, or year, that use occurred, when compared to frequency of a daily basis.

Further, the Board finds that the Veteran is competent to report the observable symptoms of his asthma, to include wheezing, and that they have continued since their onset. See Kahana v Shinseki, 24 Vet. App. 428, 435 (2012).

Ultimately, the Board finds that after considering all of the pertinent evidence, such evidence does not persuasively show that any material improvement would be maintained under ordinary conditions of life. Thus, as the record does not support the reduction in rating, the Board must find that the reduction in the rating for the Veteran's asthma from 30 percent to 10 percent was improper and restoration of the 30 percent rating is indicated.

Accordingly, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit-of-the-doubt must be resolved in favor of the Veteran, and entitlement to restoration of the 30 percent rating for the Veteran's asthma, effective August 1, 202
(2012).

REASONS FOR REMAND

Service Connection - ED

The Veteran's post-service treatment records reveal that he complained of trouble with an erection in September 2017. At that time, it is unclear if he was diagnosed with ED or whether his ED was associated to any of his service-connected disabilities.

A review of the record shows that the Veteran has not yet been afforded a VA examination to determine the nature and etiology of his ED.

The Board finds that the AOJ's failure to obtain a VA examination prior to the adjudication of the claim constitutes a pre-decisional duty to assist error that warrants a remand for corrective action. 38 C.F.R. § 20.802(a).

TDIU

The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the grant of entitlement to service connection for migraines and the claim of entitlement to ED, which has been remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, adjudication of the TDIU claim must be deferred.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed erectile dysfunction. The claims file must be made available to and reviewed by the examiner.

Based on the examination results and a review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability had its onset during the Veteran's active service or is otherwise etiologically related to such service.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Randall, Alexandria G.

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.

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