Citation Nr: 21069955 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 11-18 128 DATE: November 22, 2021 ORDER Entitlement to service connection for migraines is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. REMANDED Entitlement to SMC at the housebound rate prior to September 14, 2020, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that migraines began during active service, or are otherwise related to an in-service injury or disease. 2. The Veteran is service-connected for psychiatric, post-operative bilateral hernia, hiatal hernia, scars, bilateral lower extremity, and allergic rhinitis disabilities; his service-connected disabilities do not render him so helpless as to require the regular aid and attendance of another person to protect himself from the hazards and dangers incident to the daily environment. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for SMC based on the need for aid and attendance are not met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1972 to June 1976. This matter is on appeal from a May 2016 rating decision and was previously remanded by the Board of Veterans' Appeals (Board) in May 2020 and June 2021. 1. Entitlement to service connection for migraines The Veteran contends that his migraines began during service. October 2016 statement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of migraines, and evidence shows that he reported recurrent headaches during service, the preponderance of the evidence weighs against finding that the Veteran's current diagnosis of migraines began during service or is otherwise related to an in-service injury, event, or disease. Initially, the Board finds that the Veteran was presumed sound at entry to service. A November 2010 VA examination shows that the Veteran reported chronic headaches that started in middle school, prior to entrance into the military. This examination suggests that the Veteran had a preexisting migraine disability prior to service entry. A June 2021 VA examination opinion shows that the Veteran's migraines did not clearly and unmistakably exist prior to service. The rationale was that there was no clear and unmistakable evidence of preexisting migraine headache diagnosis. The examiner noted that the Veteran's 1972 entrance examination showed a head injury prior to service, and the Veteran reported recurrent headaches in 1973 with reference to the prior service injury. The examiner opined that with reference to the 1972 prior service injury, the headaches reported in 1973 were general, possible tension headaches and/or simple acute recurrent headaches. The examiner opined that there was no seen evidence of migraines in 1973 or any chronic recurrence of those headaches. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on this opinion, the Board concludes that the Veteran did not have a preexisting migraine disability prior to service, and was in sound health at entry. Following service, the first report of headaches is a private treatment record dated in November 1984. A September 2000 VA treatment record shows that the Veteran's reported headaches did not appear to be migraines. The first diagnosis of migraines was not until 2012, as per an October 2020 VA examination, decades after his separation from service. While the Veteran is competent to report having experienced headaches since service, he does not have the training or credentials to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed migraines. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, the June 2021 VA examiner opined that the Veteran's migraines are not at least as likely as not related to an in-service injury, event, or disease, including his headaches in service. The rationale was that there was no chronic evidence seen in service treatment records, medical notes, assessments, or histories for the remaining service time until 2010 assessment. The examiner reported that there was no medical evidence to support an aggravation of any headaches in service that progressed to a chronic headache diagnosis. The examiner opined that the service notes of headaches in 1973 were acute in nature. The examiner's opinion is again probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran believes his current migraines are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2021 VA examiner's opinion. 2. Entitlement to SMC based on the need for aid and attendance SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. The need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the Veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224. For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The evidence does not show, nor does the Veteran contend, that he is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. The evidence also does not show, nor does the Veteran contend, that he is a patient in a nursing home because of mental or physical incapacity. The medical evidence does not demonstrate that the Veteran requires regular aid and attendance due to his service-connected disabilities. The Veteran is service connected for psychiatric, post-operative bilateral hernia repairs with chronic pain syndrome, hiatal hernia, scars, bilateral lower extremity, and allergic rhinitis disabilities. A September 2015 private examination for regular aid and attendance shows that the Veteran was able to prepare his own meals. He needed assistance with dressing changes for his post-operative inguinal hernia. He did not require medication management, and did not have the ability to manage his own financial affairs. The Veteran had no upper or lower extremity restrictions. An April 2016 VA examination for his service-connected post-operative bilateral hernia repairs shows that the functional impact was having moderate pain with performing activities of daily living. The Veteran used two canes to assist in balance and ambulation. An April 2016 VA psychiatric examination shows that the Veteran was capable of managing his financial affairs. A February 2018 VA examination for his bilateral lower extremity neuralgia associated with post-operative bilateral hernia repairs shows that the functional impact was decreased ability in performing activities that require sitting, standing, walking, lifting or bending, especially with repetitive or prolonged activity. A February 2018 VA examination for his post-operative bilateral hernia repairs reveals the same functional impact as with his bilateral lower extremity neuralgia, as does a February 2018 VA examination for his scars. A May 2020 VA examination for his psychiatric disability again shows that he was capable of managing his financial affairs. An October 2020 VA examination for his hiatal hernia reveals that there was no functional impact. The Veteran was also provided VA examinations for his post-operative inguinal hernia and associated scars and bilateral lower extremity disabilities in October 2020. These examinations all show the functional impact of constant pain radiating to the back and both legs, and difficulty walking, sitting, and standing due to the pain. In this case, the evidence does not indicate that the Veteran's disabilities render him so helpless as to need regular aid and attendance or render him permanently bedridden. There are no examinations or treatment records reflecting that, due to his service-connected disabilities, the Veteran is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; have frequent need of adjustment of any special prosthetic or orthopedic appliances which cannot be done without aid; is unable to feed himself through loss of coordination of upper extremities or through extreme weakness; is unable to attend to the wants of nature; or has incapacity requiring care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Even with pain as reported above, the examinations all fail to show that the Veteran requires the regular aid and attendance of another person. No medical professional has provided any opinion indicating that the Veteran's disabilities render him so helpless as to need regular aid and attendance or render him permanently bedridden. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for SMC based on the need for aid and attendance. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to SMC based on the need for aid and attendance is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to SMC at the housebound rate prior to September 14, 2020, is remanded. The Veteran is in receipt of SMC at the housebound rate from September 14, 2020, the date he had a 100 percent disability rating as the result of having a total rating based on individual employability (TDIU) due to his psychiatric disability, in addition to having a separate disability rated as 60 percent disabling due to his post-operative bilateral hernia repairs and associated residuals. The Veteran filed a claim for an increased rating for his post-operative bilateral hernia and associated residuals, which was received on September 14, 2020. An October 2020 rating decision granted increased ratings for his post-operative bilateral hernia repairs with chronic pain syndrome and painful surgical anterior trunk scars effective September 14, 2020. As a result of this decision, the Veteran's post-operative bilateral hernia and associated residuals are rated as 60 percent, meeting the criteria for SMC at the housebound rate. The Veteran filed a supplemental claim in October 2020, regarding the effective date of post-operative bilateral hernia repairs and painful surgical scars. Additionally, in January 2021, he filed a clear and unmistakable (CUE) error claim regarding the effective dates of the painful surgical scars and post-operative bilateral hernia repairs. The resolution of the Veteran's claims for earlier effective dates may affect whether SMC at the housebound rate is warranted prior to September 14, 2020. Accordingly, the Board will defer adjudication of the SMC claim until the CUE and earlier effective date claims have been adjudicated. The matters are REMANDED for the following action: 1. Take any actions necessary regarding the October 2020 supplemental claim and January 2021 CUE claim regarding the assigment of September 14, 2020, as the effective date for increased ratings for post-operative bilateral hernia repairs with chronic pain syndrome and painful surgical anterior trunk scars. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, readjudicate the Veteran's claim for SMC at the housebound rate prior to September 14, 2020. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Barstow, 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.