HEADACHES

Summary

The veteran, who served in the United States Army from August 1978 to December 1998, appeals a March 2021 higher-level review decision that maintained a noncompensable rating for tension headaches. The veteran had previously been rated at 50 percent for this condition. The Board of Veterans' Appeals reviewed the case based on the evidence of record at the time of the October 2020 rating decision, which initially proposed the reduction. The veteran's representative had timely requested an in-person pre-determination hearing regarding the proposed reduction. However, the VA Regional Office (AOJ) effectuated the reduction to a noncompensable rating in October 2020 without providing the requested hearing. The Board found that the AOJ failed to satisfy the procedural requirements for reducing a disability evaluation, specifically by not providing the pre-determination hearing as required by 38 C.F.R. § 3.105(i) after the veteran timely requested it. Because the AOJ did not follow proper procedures, the reduction was deemed void ab initio. Consequently, the Board granted the restoration of the 50 percent rating for tension headaches, effective from January 5, 2021, the date the improper reduction took effect. The Board noted that any evidence submitted after the hearing or beyond 90 days post-hearing would require a Supplemental Claim filing.

Rationale

Reduction of rating was procedurally improper; Failure to provide requested pre-determination hearing; Restoration of 50% rating is warranted

Full Decision Text

Citation Nr: A26036990
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 210512-159316
DATE: April 21, 2026

ORDER

The reduction of the rating for tension headaches from 50 percent to noncompensable was improper; therefore, restoration of the 50 percent rating is granted.

FINDING OF FACT

The procedural requirements for the proposed reduction of the rating of the Veteran's tension headaches disability from 50 percent to noncompensable were not satisfied.

CONCLUSION OF LAW

The reduction in the disability rating for tension headaches from 50 percent to noncompensable from January 5, 2021, was not proper.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.105(i), 4.124a, Diagnostic Code (DC) 8100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1978 to December 1998.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2021 higher-level review (HLR) rating decision issued by a VA Regional Office, the agency of original jurisdiction (AOJ).  Upon review of the October 2020 rating decision which reduced the Veteran's rating for tension headaches to a noncompensable rating, the AOJ continued the Veteran's noncompensable rating.      

In the May 2021 VA Form 10182, Notice of Disagreement (NOD ), the Veteran elected the Hearing docket.  A Board hearing was held before the undersigned on March 14, 2025, and a transcript is of record.

Therefore, the Board may only consider the evidence of record at the time of the October 2020 rating decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 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, considering the new evidence in addition to the evidence previously considered.  Id.  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

1. The reduction of the rating for tension headaches from 50 percent to noncompensable was improper; therefore, restoration of the 50 percent rating is granted.

When determining whether a reduction was proper, there are two sequential questions that must be addressed.  First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105.  If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability.  

The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i).  Generally, when a reduction in evaluation of a service-connected disability is contemplated and the lower evaluation will result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore.  The AOJ must advise the Veteran of the proposed rating and give the Veteran 60 days to present additional evidence showing that compensation should be continued at the present evaluation level, as well as an opportunity to appear at a personal hearing.  38 C.F.R. § 
 requirements.  See 38 C.F.R. § 3.105(e), (i).  Generally, when a reduction in evaluation of a service-connected disability is contemplated and the lower evaluation will result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore.  The AOJ must advise the Veteran of the proposed rating and give the Veteran 60 days to present additional evidence showing that compensation should be continued at the present evaluation level, as well as an opportunity to appear at a personal hearing.  38 C.F.R. § 3.105(e).   

In this case, the Veteran was initially notified of a proposed reduction in the evaluation of his tension headaches in an August 2020 rating decision and accompanying letter.  The Veteran's representative thereafter timely requested an in-person pre-determination hearing on the proposed reduction in an August 2020 letter.  See 38 C.F.R. § 3.105(i).  In an October 2020 rating decision, the AOJ effectuated the proposed reduction for tension headaches from 50 percent to noncompensable effective January 1, 2021, without providing the requested opportunity to appear at a personal hearing.  

The Board notes that the Veteran was afforded an informal conference on September 24, 2020, associated with the Veteran's May 2020 request for HLR wherein the Veteran claimed he was entitled to an earlier effective date for the award of his 50 percent rating for migraines.  The informal conference, however, did not contain any discussion of the proposed reduction in the evaluation of the Veteran's tension headaches.  Indeed, the AOJ subsequently granted an earlier effective date of May 10, 2018, for the 50 percent rating for tension headaches in a September 2020 HLR rating decision.  

Given the forgoing, the Board finds that the procedural requirements for the proposed reduction of the rating of the Veteran's tension headaches disability from 50 percent to noncompensable were not satisfied.  Specifically, the Veteran timely requested a predetermination hearing, and the predetermination hearing was not provided in accordance with the provisions of 38 C.F.R. § 3.105(i).  

The failure to properly apply the relevant provisions relating to rating reductions renders the reduction for tension headaches from 50 percent to noncompensable void ab initio.  The appropriate remedy in this case is therefore restoration of the 50 percent rating for tension headaches under DC 8100.  Restoration of the 50 percent rating for tension headaches for the entire period for which it was reduced, from January 5, 2021, is therefore warranted.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Knopp, Derek A.

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.