Citation Nr: 1815272 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 09-32 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent disabling for migraine headaches. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to February 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is currently with the Houston, Texas RO. The case was previously before the Board in May 2013 and May 2017 when it was remanded for additional development. The appellant testified at a hearing before the undersigned in December 2017. The transcript of this hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's migraine headache disability is assigned a 50 percent rating, the maximum authorized under Diagnostic Code 8100. 2. There are no symptoms of migraine headaches not contemplated by the diagnostic criteria for the Veteran's service-connected disabilities and SMC. 3. It is at least in equipoise that the Veteran's service-connected disabilities render him so helpless as to be in need of regular aid and attendance; he requires regular personal assistance from his wife to perform activities of daily living. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular evaluation in excess of 50 percent for migraine headaches. 38 U.S.C. §1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §4.87, Diagnostic Code 9100 (2017). 2. The criteria have not been met for an increased rating greater than 50 percent for migraine headaches, on an extraschedular basis. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. 3.321 (b) (2017). 3. The criteria for SMC based on the need for the regular aid and attendance of another person have been met. 38 U.S.C. § 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Higher Evaluation The Veteran seeks entitlement to an evaluation in excess of 50 percent disabling for migraine headaches. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). During the period on appeal the Veteran's migraine headaches have been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. Historically, the Veteran's disability was characterized as migraine with psychoneurotic features, then migraine headaches with anxiety disorder, and as migraine headaches, as effective December 31, 2003, anxiety disorder was evaluated as a separate disability. As such, this hyphenated diagnostic code may be read to indicate that the Veteran's neurological condition is rated as migraine headaches under Diagnostic Code 8100. During the entire period on appeal the Veteran has been in receipt of the highest schedular evaluation available for migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321 (b) for migraine headaches is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran was afforded a VA examination in January 2008. The Veteran reported that he was awoken at night due to the pain. He reported that it affected his eyesight and concentration. They impaired concentration, nervousness, experienced vomiting, and must stay in a cool environment because he could not stand heat. Specific to migraines the Veteran reported the frequency of his headaches. The Veteran underwent another evaluation in February 2008. The examiner reported the Veteran's symptoms of pain and intensity of the pain. The evaluator further reported psychiatric symptoms, poor concentration, and growing memory deficits. The Veteran was afforded a VA migraine examination in November 2011. The examiner noted that the Veteran was confined to a wheelchair and that this was due to debilitation caused by severe headaches. The examiner noted that the Veteran had difficulty performing ambulation with the lower extremities due to debilitating headaches. He had no difficulty with weight bearing and balancing. Neurological examination revealed coordination to be abnormal with findings of hand clumsiness. Motor function was abnormal with findings of shoulders weakness. Sensory examination was intact and reflexes were 2+. Motor function of the lower extremities was abnormal with bilateral hip and knee weakness. Sensory examination was intact and reflexes were 2+. Cerebellar function revealed finger to nose dysmetria. There was no paralysis, problems with speech, vision problems, or joint or dexterity problems. The examiner noted that for the established diagnosis of migraines, the diagnosis was changed to temporal arteritis. This was a result of a progression from the previous diagnosis. The Veteran complained of severe right temporal headache recurrent episodes with pulsating symptoms consistent with temporal arteritis and polymyalgia rheumatica. The subjective factors were debilitating headaches, temporal artery throbbing and headaches, prior hospitalization. The objective factors were confined to a wheelchair and neurological deficits. The Board acknowledges that the rating criteria for migraine headaches do not contemplate memory deficits, poor concentration, vertigo, eyesight problems, confinement to a wheelchair, and neurological deficits. However, the Veteran's psychiatric symptoms, including memory deficits, are contemplated by the Veteran's separately compensated psychiatric disability. In addition, in this decision the Board grants entitlement to SMC based on the need for aid and attendance taking into consideration the Veteran's additional symptoms of migraine headaches, including poor balance, poor self-care, inability to leave his home, vertigo, confinement to a wheelchair, dizziness, and imbalance. As such, the Board finds that the Veteran's symptoms of migraine headache are completely contemplated by the Veteran's compensation for migraine headaches, psychiatric disability, and SMC. Therefore, remand for extrashedular consideration is not warranted. II. SMC The Veteran seeks entitlement to SMC based on the need for the aid and attendance. The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351 (b). A veteran will be considered in need of aid and attendance if he or she is (1) 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 5 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 C.F.R. § 3.351 (c). Under 38 C.F.R. § 3.352 (a), certain criteria will be accorded consideration in determining the need for regular aid and attendance. It is not required that all of the disabling conditions enumerated be found to exist before a favorable ruling may be made. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352 (a); Turco v. Brown, 9 Vet. App. 222 (1996). A Veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his lifetime. 38 U.S.C. § 1502 (c); 38 C.F.R. § 3.351 (d)(2). In a May 2008 statement a private physician stated that the Veteran was diagnosed with severe migraine headaches, severe chronic anxiety, and severe vertigo (abnormal gain). The private provider stated that the Veteran was in need of the aid and attendance of someone else in ordinary activities of daily living and was housebound, confined to his house or immediate premises. The provider noted that the Veteran could only leave his home or immediate premises with assistance. He used a cane for locomotion. He was restricted by migraine headaches aggravating vertigo and abnormal gait. In a February 2011 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance the Veteran was noted be diagnosed with coronary artery disease, GERD, chronic lower back pain, abnormal gait, vertigo, sleep apnea, hypertension, hyperlipidemia, dementia, cerebrovascular accident, cerebellar infarction, and migraines. The Veteran was unable to prepare his own meals, needed nursing home care, and needed medication management. The Veteran did not have the ability to manage his own financial affairs. The Veteran's gait was unstable and he had falls and vertigo. The provider noted that the Veteran cannot attend to the needs of nature. He had good fine movement and grip. He had dizziness, loss of memory, poor balance, poor self-care, and could not leave his home. He could only leave with assistance due to falls. He needed a cane, brace, crutch or assistance of another person for locomotion. The Veteran was afforded a VA examination in May 2011. The Veteran was noted to be unable to cook, perform personal hygiene (getting in and out of a bath tub), shop, travel, or exercise or participate in recreational activities that require getting out of his wheelchair. The Veteran had dizziness once or more per day. He constantly had imbalance that affected the ability to ambulate. The Veteran reported that he had vertigo, migraine headache, and cerebrovascular accident that rendered him unable to independently accomplish his activities of daily living. He was unable to perform self-feeding, bathing, grooming, and toileting. Physical examination revealed the Veteran to require a wheelchair. He used a cane, walker for ambulation. He was unrestricted in the circumstances where he could leave the home. Best corrected vision was not 5/200 or worse in both eyes. There was normal function of the upper extremities. The left lower extremity functional limitation was described as muscle weakness and lack of coordination. The right lower extremity functional limitation was described as lack of coordination. There was moderate weakness on the left side of the body due to past CVA. While walking his body leaned forward and due to the weakness of the body on the left side he tended to lose his balance. No disorders of mental competency were noted. The diagnosis rendered was limitation in ADLs due to multiple chronic comorbidities and residual weakness of stroke. The medical opinion was that the Veteran's limitation in ADLs was due to multiple chronic comorbidities including dizziness, frequent falls, frequent attacks of migraine headaches, hypertension, chronic CHF and home oxygen therapy for COPD. He had physical disabilities due to mild to moderate CVA he suffered in August 2007, which affected the steadiness of his left lower extremity to walk. The Veteran lived alone with some aid from his cousin in cooking, getting in and out of the bath tub and most importantly driving him around by his specialized van to his doctors' appointments. The examiner noted that the Veteran obviously needed aid and attendance in most of his ADL, including housekeeping, cooking, doing groceries, getting in and out of the bath tub, driving, etc. However, the examiner opined that the Veteran's limitation in his ADLs was not caused by service connected migraine headaches and anxiety disorders alone. In November 2011 the Veteran underwent a VA examination regarding his migraine headaches after which the examiner characterized the effect of the condition on the Veteran's daily activity as total debilitation and disability during flare-up episodes. VA treatment records reveal that the Veteran has needed transportation assistance. In May 2009 the Veteran was ambulatory with cane, wife at side and driving. In VA treatment records the severity of the Veteran's headaches were noted to interfere with activities of daily living. See, e.g., September 2012, October 2012 and November 2012. In a March 2016 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance the Veteran was noted be diagnosed with migraines, CVA, ataxia, vertigo, obstructive sleep apnea, hypothyroidism, insomnia, cataract, history of falls, and pedal edema. It was noted that the Veteran's migraine disability was what restricted the listed activities/functions. When the Veteran had a migraine he could not feed himself, dress himself, bath or attend to the needs of nature. When he had a migraine he was bedridden and bilateral legs and ankles swell. When the Veteran had migraines he tended to fall with and required assistance to attend to the needs of nature. He left the home at least once a week for doctor appointments, grocery store, and bank. Aids such as canes, braces, crutches or the assistance of another person were required for locomotion with a distance of 10 feet. Affording the Veteran the benefit of the doubt, entitlement to SMC at the aid and attendance rate is warranted. During the entire period on appeal the Veteran was in receipt of service-connected benefits for migraine headaches and anxiety disorder. Review of the record reveals that the Veteran could only leave his home with the assistance of another person. The Veteran was noted to have difficulty performing ambulation with lower extremities due to debilitating headaches. A May 2008 provider's statement it noted that the Veteran's migraine headaches aggravated his vertigo and the Veteran was in need of the aid and attendance of someone else in ordinary activities of daily living. In a November 2011 VA examination it was noted that the effect of the condition on the Veteran's daily activity was total debilitation and disability during flare-up episodes. In a March 2016 statement it was noted that the Veteran's migraine disability was what restricted the listed activities/functions. When the Veteran had a migraine he could not feed himself, dress himself, bath or attend to the needs of nature. In addition, when he had migraines the Veteran was bedridden, unable to turn his head, he tended to fall, and required assistance to attend to the needs of nature. Thus, the Board finds that the Veteran's service-connected disabilities render the Veteran nearly so helpless as to require the regular aid and attendance of another person. Therefore, entitlement to SMC at the aid and attendance rate is granted. ORDER Entitlement to an evaluation in excess of 50 percent disabling for migraine headaches is denied. Special monthly compensation based on the need for aid and attendance is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs