Citation Nr: 21009410 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 190717-15799 DATE: February 22, 2021 ORDER Entitlement to special monthly compensation based on the need for aid and attendance is granted. FINDING OF FACT The evidence shows that the Veteran requires the regular aid and assistance of others to care for herself or to protect her from the hazards or dangers incident to her daily environment as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation based on the need for aid and attendance of another have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to February 1986. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in the modernized review system. See 38 C.F.R. § 3.2400. In July 2019, VA received the Veteran’s Notice of Disagreement (NOD) with the rating decision. The Veteran indicated on the NOD form that she wished to proceed to appeal the rating decision to the Board under the evidence submission option. See 38 C.F.R. § 20.202(b)(3) (proving an opportunity to submit additional evidence without a Board hearing with the Notice of Disagreement and within 90 days following receipt of the Notice of Disagreement). After considering all evidence received within 90 days of VA’s receipt of the July 2019 NOD form in addition to the evidence of record at the time of the July 2019 rating decision, the Board denied the Veteran’s claim in a December 2019 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In September 2020, CAVC granted a Joint Motion for Remand (JMR) vacating the Board’s decision and remanding the matter to the Board for additional reasons and bases in support of a decision in accordance with the JMR’s finding that the Board did not provide adequate rationale. The JMR notes that the Board acknowledged that a February 2019 VA examination disability benefits questionnaire (DBQ) noted in part that the Veteran’s migraine flare-ups occurred three to four times per week with each lasting 36 to 48 hours. The JMR notes that the Board also acknowledged the Veteran requires assistance with walking and medication management during flare-ups of her migraines. However, the JMR found that the Board did not explain why these findings do not demonstrate a need for aid and attendance. The JMR also notes the Board did not adequately discuss a June 2015 VA examination DBQ, during which the Veteran stated that during her migraine attacks she was totally debilitated and unable to do anything for herself. The JMR notes that Board found the Veteran’s assertions of imbalance lack credibility without explaining the finding in detail and weighing the evidence it used to find the Veteran not credible against the evidence of record where she did complain of balance problems. Similarly, the JMR notes that the Board did not discuss whether it was only finding Veteran’s assertions not credible or also those made by a physician as the VA examinations noted the Veteran exhibited episodes of dizziness and near falls during migraines lasting up to 48 hours. In light of the deficiencies noted in the JMR, the Board will give further consideration to this evidence in the context of the law applicable to claims for special monthly compensation based on the need for aid and attendance. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of her service-connected disabilities: (1) is blind or 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 five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance 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)(3). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that she is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress herself, or to keep herself 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 such aid; the inability of the Veteran to feed herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to her daily environment. See 38 C.F.R. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a Veteran is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that her condition is such as would require her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). As noted in the JMR, the evidence of record including VA examinations of the Veteran’s service-connected disabilities, including posttraumatic stress disorder (PTSD) and migraine headaches, indicates that the Veteran is at times unable to care for herself and avoid environmental dangers without the aid and attendance of another. While other reports, including VA treatment records dated prior to 2019 and earlier examinations noted in the Board’s vacated decision, contain some conflicting findings on the need for aid and attendance, the Board finds the recent examinations to be more probative of the Veteran’s functioning during the period at issue. Moreover, as noted in the JMR, the Veteran has reported debilitating migraines for many years, and the Board finds inconsistencies between reports of her condition over time reflects variability in functioning due to flare-ups. The Board finds that the evidence highlighted in the JMR, including the most recent VA examination, demonstrates that the severity of the Veteran’s migraines to include during flare-ups of prostrating attacks requires the Veteran to be bedridden at times. While a review of the record indicates that the Veteran is also substantially impaired by disabilities that are not service connected, the Board finds that the service-connected disabilities cause the Veteran to require the aid and attendance without considering the limitations of the other disabilities. In pertinent part, the VA examination evidence cited in the JMR indicates that, without the assistance of another, the Veteran’s attempt to venture out and provide for herself during the prostrating migraine attacks incurs a significant risk of falling and bodily injury. The Board affords great probative value to the opinions of the VA examiners, as the opinions are based on a careful review of the pertinent records and lay statements in the context of an examination of the Veteran. Upon further review, the Board concludes that the examples cited in the vacated decision of the Veteran’s ability to leave her home and care for herself at times do not demonstrate that her statements about her need for aid and attendance are not credible. The evidence indicates that while the Veteran’s functional limitations caused by her service-connected disabilities vary, she is regularly bedridden as a result of flare-ups of her migraines. As noted above, the Veteran does not need to demonstrate a constant need for aid and attendance to prevail on the claim, and the Board finds the evidence demonstrates the frequency, duration, and severity of the Veteran’s flare-ups of prostrating migraines causes her to require regular aid and attendance. Accordingly, entitlement to special monthly compensation based on the need for aid and attendance is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.