Citation Nr: 21028466 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-24 157 DATE: May 11, 2021 ORDER 1. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea (OSA) with asthma is denied. 2. A 70 percent rating for depression is granted throughout, prior to June 22, 2012, from [the earlier effective date of] May 18, 2008, subject to the regulations governing payment of monetary awards; entitlement to a schedular 100 percent rating is denied. 3. Entitlement to SMC based on the need for regular aid and attendance is granted, effective July 27, 2018, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. The Veteran's asthma is not shown to have been manifested by forced expiratory volume in the first second (FEV-1) that is 40-55 percent predicted, or; FEV-1/Forced Vital Capacity (FVC) is 40-55 percent, or at least monthly visits to a physician required for care of exacerbations, or; with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; OSA with chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring tracheostomy is not shown. 2. Throughout, prior to June 22, 2012, from [the earlier effective date of] May 18, 2008, the Veteran's depression disability picture is best characterized as occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 3. It is reasonably shown that from July 27, 2018 (but not earlier), due to his service connected disabilities (depressive disorder, rated 100 percent; sleep apnea with asthma, 50 percent; right upper extremity radiculopathy, 50 percent; lumbar spine herniated disc, 40 percent; left upper extremity radiculopathy, 40 percent; left and lower extremity radiculopathy, 40 percent, each; a cervical spine disability, 30 percent; neurogenic bowel dysfunction, 30 percent; keloid scars (trunk area, painful), 30 percent; bladder dysfunction, 20 percent; left and right knee disabilities, hypertension, and keloid scars (trunk area), 10 percent, each; and costochondritis, sinusitis, anemia, and erectile dysfunction (ED), 0 percent, each) the Veteran has required the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. A rating in excess of 50 percent for asthma with OSA is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(a), 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes (Codes) 6602, 6847. 2. A 70 percent rating for depression is warranted throughout prior to June 22, 2012, from [the earlier effective date of] May 18, 2008; a 100 percent schedular rating for depression is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Code 9434. 3. SMC based on the need for regular aid and attendance is warranted from July 27, 2018. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1980 to July 2000. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a November 2009 rating decision. In June 2016, a hearing was held before the undersigned in Washington, D.C.; a transcript is in the file. In September 2017, the matter was remanded for additional development. An October 2019 Board decision denied entitlement to ratings for depression in excess of 50 percent prior to June 22, 2012 and in excess of 70 percent from that date to January 25, 2019, a rating in excess of 40 percent for a low back disability, a rating in excess of 30 percent for a cervical spine disc disease, a rating in excess of 10 percent for left knee degenerative joint disease (DJD), a rating in excess of 10 percent for right knee DJD, a rating is excess of 10 percent prior to February 27, 2019 for keloid scars, a rating in excess of 10 percent prior to February 27, 2019 for right leg radiculopathy, and a rating in excess of 10 percent prior to February 27, 2019 for left leg radiculopathy, and remanded entitlement to a rating in excess of 50 percent for sleep apnea. The Veteran appealed that decision to the CAVC. An August 2020 CAVC Order vacated the portion of the Board's October 2019 decision that denied entitlement to a rating in excess of 50 percent prior to June 22, 2012, for depression and a rating in excess of 70 percent from June 22, 2012 to the extent that it failed to address the Veteran's claim for entitlement to SMC at the "L" level, and remanded it to the Board for further development and re-adjudication consistent with terms of an August 2020 Joint Motion for Partial Remand (JMPR). [The CAVC left undisturbed the part of the Board decision that remanded a rating excess of 50 percent for sleep apnea with asthma and that granted a 100 percent rating for depression from January 25, 2019, a 30 percent rating for keloid scars from February 27, 2019, 40 percent ratings, each, for right and left lower extremity radiculopathy from February 27, 2019, and separate 50 percent for right upper extremity cervical radiculopathy and 40 percent for left upper extremity cervical radiculopathy ratings from February 27, 2019. Further, the parties requested that the CAVC not disturb those parts of the Board decision that denied a rating in excess of 70 percent from June 22, 2012, to January 25, 2019, for depression on any theory of entitlement other than whether an increased rating is required based on entitlement to SMC, a rating in excess of 40 percent for a low back disability, a rating in excess of 30 percent for cervical spine disc disease, ratings in excess of 10 percent, each, for right and left knee degenerative joint disease, ratings in excess of 10 percent prior to February 27, 2019, and in excess of 30 percent from that date for keloid scars, ratings in excess of 10 percent prior to February 27, 2019, and in excess of 40 percent from that date, each for right and left lower extremity radiculopathy, and ratings in excess of 50 percent for right upper extremity cervical radiculopathy and in excess of 40 percent for left upper extremity cervical radiculopathy from February 27, 2019.] In the August 2020 JMPR, the parties agreed that vacatur and remand was required because the Board erred when it provided an inadequate statement of reasons or bases for its determinations under the requirements of 38 U.S.C. § 7104(d). The parties agreed that remand was warranted for the Board to provide an adequate statement of reasons or bases, addressing the pertinent evidence as to the level of severity of the Veteran's depression prior to June 22, 2012. The Board erred by not addressing evidence whether the Veteran demonstrated an intermittent inability to perform activities of daily living, finding a higher rating was not warranted because his reports of suicidal ideation were "passive" and with "no intent, plan, or means," and not addressing whether his difficulty with work rose to the level of difficulty in adapting to stressful circumstances (including work or a worklike setting). The Board also erred by not addressing whether the Veteran's social impairment rose to the level of "inability to establish and maintain effective relationships," by not addressing whether his irritability and outbursts rose to the level of impaired impulse control (such as unprovoked irritability with periods of violence), and by not addressing evidence he had "obsessive rumination" and whether such rises to the level of obsessional rituals which interfere with routine activities. Further, the Board erred by not addressing whether the evidence demonstrated that his panic attacks were "near-continuous." Additionally, the Board erred when it failed to adjudicate the issue of the Veteran's entitlement to SMC at the "L" level for the entire period on appeal despite it having been raised during the pendency of his increased rating claim for his service-connected depression. [The Board notes that in June 2013 the Veteran filed a claim for SMC that was denied in a January 2014 rating decision. He filed a notice of disagreement, and a statement of the case was issued in March 2017. He did not file a substantive appeal (Form 9) in response to the SOC. Nevertheless, given the agreement by the parties to the JMPR, entitlement to SMC is discussed further below.] 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; C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. Id. As the instant claims of increase for asthma with OSA and depression were received on May 18, 2009, the period for consideration is from May 18, 2008. 1. Entitlement to a rating in excess of 50 percent for asthma with OSA is denied. A November 2009 rating decision discontinued separate evaluations for service-connected asthma and OSA and assigned a single 50 percent rating, effective November 05, 2009, for asthma with OSA. Under 38 C.F.R. § 4.96(a) ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 (which includes the rating for asthma under Code 6602 and that for OSA under Code 6847) may not be combined. Instead a single rating is to be assigned under the diagnostic code which reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Under Code 6602, a 100 percent evaluation is warranted for asthma when FEV-1 is less than 40 percent predicted, or; FEV-1/FVC is less than 40 percent, or; with more than one attack per week with episodes of respiratory failure, or; when daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. A 60 percent evaluation is warranted when FEV-1 is 40-55 percent predicted, or; FEV-1/FVC is 40-55 percent, or; with at least monthly visits to a physician required for care of exacerbations, or; with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97. Under Code 6847, a 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. 38 C.F.R. § 4.97. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where; tracheostomy is required. Post-bronchodilator results are required when pulmonary function tests (PFTs) are done for disability evaluation purposes (except when the results of pre-bronchodilator PFTs are normal, or when the examiner determines that post-bronchodilator studies should not be done, and explains why). 38 C.F.R. § 4.96 (d)(4). An August 2008 VA treatment record notes that the Veteran reported having numerous asthma exacerbations. A November 2008 VA PFT showed an FVC of 2.46, an FEV-1 of 2.05, an FEV-1/FVC of 84 percent, and FEV-1 predicted was 71 percent. The Veteran took Singulair (Montelukast) and Theophylline and reported some exacerbations and coughing spells. He did not have any recent hospitalizations or ER visits. The provider noted that there was no evidence of asthma other than spasmodic cough and that he was unable to complete PFTs in October 2008. She opined that the Veteran's appearance today with acute onset hoarseness associated with single spirometry effort strongly suggested vocal cord dysfunction syndrome. A December 2008 VA treatment record notes that the Veteran reported that he sought treatment from a private pulmonologist for severe asthma. He reported that he took Theophylline and had been on Prednisone in the past, but now he only took it in "short bursts." A December 2008 private PFT showed an FVC of 4.54 predicted, with a best attempt of 1.82, and a best attempt/predicted ratio of 40.1 percent, and an FEV-1 of 3.70 predicted, with a best attempt of 1.35, and a best attempt/predicted ratio of 36.4 percent. A January 2009 VA treatment record notes that the Veteran has severe asthma; he reported some exacerbations and coughing spells, that he took Singulair and Theophylline, and that he had no recent Prednisone use. He reported that he was treated from a private pulmonologist and would submit the treatment records. A February 2009 VA treatment record notes that the Veteran reported a cough that was sometimes productive, intermittent wheeze, and shortness of breath. He reported daily Albuterol use and no recent hospitalizations. The provider indicated that his symptoms were perennial and despite medications, he has nocturnal asthma nightly and decreased exercise tolerance. On June 2009 VA asthma examination, the Veteran reported loss of appetite, cough with purulent sputum, and shortness of breath after walking 1 block. He reported daily asthmatic attacks, the need to visit a physician to control the attacks as often as once a month, and daily Prednisone use. On examination, it was noted that he had not experienced episodes of respiratory failure, did not require usage of outpatient oxygen therapy, and did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. A July 2009 VA treatment record notes that the Veteran reported nightly use of CPAP that resulted in better sleep. In a July 2009 statement, the Veteran reported that he could not complete a PFT due to vaso-vagal couch syncope because he may lose consciousness during the test. He related that he suffered asthma attacks with severe chest pain daily that were not induced by activity. He reported use of an emergency inhaler as needed and a nebulizer four times daily. On February 2011 VA asthma examination, the Veteran reported loss of appetite, hemoptysis, cough with purulent sputum, shortness of breath at rest, daily asthma attacks, and the need to visit a physician to control asthma attacks as often as 2 times a month. He related that he took antibiotics 6 times a year for infection, Albuterol 4 times daily, Theophylline daily, and Formoterol 2 times daily. His functional ability was limited by asthma because he had limited ability to perform yard work and duties around the home. He experienced no episodes of respiratory failure requiring respiration assistance from a machine and had not used outpatient oxygen therapy. A PFT showed a predicted FVC of 2.27, before bronchodilator 2.8, with 85 percent predicted, and FEV-1 of 2.15 predicted, 2.39 before bronchodilator, with 88 percent predicted. The FEV1/FVC ratio was 85 percent. The examiner indicated that the Veteran provided a good effort and that the FEV-1/FVC more accurately reflected the severity of the condition. It was noted that a post-bronchodilator test was not performed because the pre-bronchodilator test was within normal limits, and there was no discrepancy between the PFT findings and clinical examination. A diffusing capacity for carbon monoxide (DLCO) test was not completed because the PFT results were sufficient to evaluate the pulmonary status of the Veteran. A February 2012 private treatment record notes a prescription for Prednisone but does not indicate for which disability it was prescribed. The Veteran was directed to take 4 tablets now then 1 tablet 3 times a day for 3 days, then 1 tablet twice a day for 3 days, then 1 tablet every day for 3 days (a total of 10 days). A March 2013 VA PFT showed a best FVC of 2.43, a best FEV-1 of 2.05, an SVC of 2.48, and an of IC 2.33. The provider indicated that despite multiple attempts, the Veteran was unable to perform the maneuver in a reproducible manner to meet the acceptability and reproducibility criteria, set by the American Thoracic Society. Therefore, only the best values were reported and may not be reliable. An October 2015 VA treatment record notes that the Veteran reported that he had been hospitalized for an asthma attack "at least 3 times," and that such hospitalizations were all more than 5 years ago. He related that since then his asthma has been more under control. A November 2015 VA treatment record notes that the Veteran took Symbicort and Albuterol as needed, and nebulizer treatments 4 times daily, with relatively good control of his symptoms. A December 2018 VA treatment record notes that the Veteran reported daily coughing due to asthma and that he used an inhaler daily for asthma control. On January 2019 VA respiratory examination, asthma was diagnosed. The examiner noted that the Veteran did not require use of oral or parenteral corticosteroid medication. He required use of daily inhalational bronchodilator therapy (the only medication). Oxygen therapy was not required. X-rays did not show an acute pulmonary process. The Veteran had not had any episodes of respiratory failure due to asthma attacks and had not needed a physician's care for exacerbations of asthma in the last 12 months. He could not complete a PFT due to vasovagal response at end expiration. The examiner opined that the Veteran's asthma had some functional impact because it limited his physical activity due to shortness of breath. A January 2019 PFT showed an actual FVC of 2.18, predicted 3.61, with 60 percent predicted, and an actual FEV-1 of 1.92, predicted 2.83, with 67 percent predicted. The FEV1/FVC actual ratio was 88 percent and predicted was 79 percent, with a percentage of predicted of 111 percent. Pre and post tests on the Veteran could not be completed due to vasovagal response at end expiration. The procedure was ceased due to risk factors. On January 2019 VA sleep disorders examination, the Veteran reported that he switched from using a CPAP to a bi-PAP machine 3-4 years ago, used the machine daily, and experienced a good sleep with machine use. He related that even with good sleep, he still would often fall asleep during the day while engaged in a conversation. The examiner indicated that continuous medication for OSA was not required, and the Veteran's OSA did not result in chronic respiratory failure with carbon dioxide retention or col pulmonale or require a tracheostomy. On February 2019 VA respiratory examination, asthma was diagnosed. The examiner noted that the Veteran did not require use of oral or parenteral corticosteroid medications. He required use of daily inhalational bronchodilator therapy (the only medication). Oxygen therapy was not required. X-rays did not show an acute pulmonary process. The Veteran had not had any episodes of respiratory failure due to asthma attacks and had not needed a physician's care for exacerbations of asthma in the last 12 months. He could not complete a PFT due to vasovagal response at end expiration. The examiner opined that the Veteran's asthma had some functional impact because it limited his physical activity due to shortness of breath. On February 2019 VA sleep disorders examination, OSA was diagnosed; the Veteran reported poor sleep. It was noted that continuous medication was not required for his OSA, he used a CPAP, and he reported persistent daytime hypersomnolence. The examiner noted that there was no evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, and that the Veteran's OSA did not result in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or require a tracheostomy. The examiner opined that the Veteran's OSA would impact his ability to work because his concentration and alertness is affected by daytime hypersomnolence. In October 2019, the Board remanded the issue of entitlement to a rating in excess of 50 percent for OSA with asthma. It was noted that in a November 2008 VA treatment record, the Veteran reported that he suffered asthma exacerbations and took inhaled steroids and that he received treatment from a private pulmonologist. Records of such treatment were not in the file. Further, on June 2009 VA respiratory examination, the Veteran reported that he sought treatment once a month, and on February 2011 VA respiratory examination, he reported that he had "twice a month" visits to the doctor. The Board directed development to identify the provider(s) of the Veteran's monthly treatment reported in June 2009, and for records showing the frequency of the use of oral or parenteral corticosteroids (which is noted) is necessary. In November 2019, VA sent a letter to the Veteran requesting the above private treatment information from May 2008 to February 2011. He did not respond to the request. A review of the Veteran's VA medication record from June 2008 to August 2020 did not find a prescription for Prednisone listed. The rating decision on appeal continued a 50 percent rating under Code 6847, which reflects that the originating agency found that OSA is the predominant disability, that a 100 percent rating is not warranted under the criteria in Code 6847 or that a 60 percent rating is warranted under the criteria in Code 6602, and the overall severity of the disability was not such that "bump-up" of the rating to 60 percent was warranted. Under the regulatory guidelines in 38 C.F.R. § 4.96, the procedure for assessing the Veteran's service-connected respiratory disability (which includes asthma and OSA) requires first a determination of the rating that would be warranted for the symptoms and impairment shown under Code 6602 (for asthma) and then a determination of the rating that would be warranted under Code 6847 (for OSA), and specifically whether the next higher (60 percent) rating (for asthma) or (100 percent) rating (for OSA) is warranted under the criteria for either Code; then if a 60 percent schedular rating under Code 6602 or 100 percent schedular rating under Code 6847 is not found warranted, a determination whether the overall severity of the disability warrants elevation of the rating to the next higher evaluation. The reports of VA examinations, treatment records, and lay statements in the record do not show or suggest that at any time under consideration the Veteran has met or approximated the criteria for a 60 percent rating under Code 6602 (for asthma). It is not shown that he has had FEV-1 that is 40-55 percent predicted, or; FEV-1/FVC is 40-55 percent, or; with at least monthly visits to a physician required for care of exacerbations, or; with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A November 2008 treatment record notes that he reported some exacerbations, but the frequency of the exacerbations was not indicated. A December 2008 treatment record notes that the Veteran related that he had been on Prednisone in the past, but indicated he only took it in "short bursts," thereby not indicating the extent of the course and/or courses of treatment. A December 2008 (although the date is not exactly clear) private PFT showed an FVC of 4.54 predicted, with a best attempt of 1.82, and a best attempt/predicted ratio of 40.1 percent, and an FEV-1 of 3.70 predicted, with a best attempt of 1.35, and a best attempt/predicted ratio of 36.4 percent. Such results would possibly warrant a 100 percent rating for asthma; however, as noted above, post-bronchodilator results are required when pulmonary function tests (PFTs) are done for disability evaluation purposes (except when the results of pre-bronchodilator PFTs are normal, or when the examiner determines that post-bronchodilator studies should not be done, and explains why). 38 C.F.R. § 4.96 (d)(4). In this instance, the pre-bronchodilator results were not normal, and the provider gave no explanation why post-bronchodilator studies were not completed. Notably, there is no discussion of the results by the provider, to include why the FVC predicted of 4.54 and FEV-1 of 3.70 predicted are markedly higher than other FVC and FEV-1 predicted numbers on PFTs of record. Additionally, on June 2009 VA respiratory examination, the Veteran reported that he sought treatment once a month and used Prednisone daily, and on February 2011 VA respiratory examination, he reported that he had "twice a month" visits to the doctor. As noted above, VA him to complete authorizations so the private treatment records could be obtained and reviewed, but he did not respond to the request, and it is assumed that the records either do not exist or do not support his claim . He did not otherwise submit additional evidence (or identify for VA to obtain) any evidence that he met such requirements. Accordingly, a 60 percent rating under Code 6602 is not warranted. Turning to the criteria under Code 6847, the evidentiary record does not show that at any time the Veteran experienced chronic respiratory failure with carbon dioxide retention or cor pulmonale or that tracheostomy was required. He has not so alleged. While he has throughout received treatment at VA facilities, he has not identified and provided authorization for records which are outstanding that would show that he met the Code 6847 requirements for a 100 percent rating. Consequently, a 100 percent rating for OSA under Code 6847 is not warranted. What remains for consideration is whether the severity of the overall disability is such that elevation of the 50 percent rating for the predominant disability (which is OSA by virtue of the finding that asthma does not warrant a rating in excess of 30 percent) based on the overall severity of the disability is warranted. The evidence of record for the period under consideration does not show that the criteria for a 50 percent rating for OSA were exceeded or nearly so (the treatment records and examination reports do not show that at any time the Veteran experienced chronic respiratory failure with carbon dioxide retention or cor pulmonale or that tracheostomy was required). The overall level of severity of the disability picture presented is far less than the level of impairment contemplated by the criteria for a 100 percent rating under Code 6847, and a "bump up" to a 100 percent rating is not warranted. The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. 2. A 70 percent rating for depression is granted throughout prior to June 22, 2012, from [the earlier effective date of] May 18, 2008. The Veteran's depression has been assigned staged ratings of 50 percent prior to June 22, 2012 and 70 percent from that date to February 27, 2019, under the General Rating Formula for Mental Disorders (General Rating Formula), which provides that: A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (ADLs) (including maintenance of minimal personal hygiene);disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38C.F.R. §4.130, Code 9434. Ratings for psychiatric disability are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from a psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms listed in the General Rating Formula. Instead, VA must consider all symptoms of a claimant's condition that affect occupational and social function. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38C.F.R. §4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994 (DSM-IV)) at 32. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). [Under a revision to the governing criteria during the evaluation period, VA's use of DSM-IV has been superseded by the new DSM-V, which does not incorporate use of the GAF scale to reflect severity of psychiatric disability. As the Veteran's claim arose when the prior criteria were in effect, GAF scores may be considered as evidence bearing on the severity of the disability. 38C.F.R. §4.126 (a).] When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38C.F.R. §4.7. After careful consideration of the evidence, reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38U.S.C. §5107; 38C.F.R. §§3.102, 4.3. A June 2009 private psychiatric treatment record (from a provider who had been treating the Veteran regularly since April 2005) notes diagnoses of depression, anxiety, and attention deficit disorder, and prescriptions for Lamictal, Celexa, Clonazepam, and Adderall. The provider noted a definite impairment in the Veteran's social relations because he reported that he had not contacted his father in years and his mother in a number of months and that tended to seclude himself from family members. He related that his wife assisted him with medication and some activities of daily life. The provider noted that the Veteran had shown some improvement in intervals, but continued to struggle much of the time. He has reported ongoing symptoms of low mood, insomnia, irritability, suicidal thoughts, poor focus, poor organizing, forgetfulness, and anxiety. It was also noted that it was difficult for the Veteran to work consistently due to his frequent bouts of depression, anxiety, and attention problems. On June 2009 VA psychiatric examination, the Veteran reported daily depression, that he slept more, had occasional suicidal thoughts, had difficulty functioning at work, and had a deteriorating relationship with his wife and family due to his lack of participation in social events. He reported that he periodically yelled at his wife, but that their relationship had been improving for the last 8 months; that he attended church less frequently, did not interact with friends, and did not go out for meals or movies; and that at work his relationship with his supervisor was strained but he had good relationships with co-workers. He reported that he recently missed 4 days of work over the last two weeks and missed one week in April due to depression. He attended therapy sessions approximately once a month and had not been hospitalized or visited the emergency room due to his psychiatric condition. On mental status examination, the Veteran's orientation was within normal limits, his appearance and hygiene were appropriate, and communication and speech were within normal limits. His depressed mood occurred near continuously and affected his ability to function independently. He reported memory problems and panic attacks that occurred more than once a week. There were no suspiciousness, delusions, hallucinations, or obsessional rituals. His thought processes were appropriate, his judgment was not impaired, and his memory was within normal limits. He reported passive thoughts of death with no plan or intent to hurt himself. He did not have homicidal ideation. His GAF score was 60. The examiner noted that mentally the Veteran did not have difficulty performing activities of daily living. He had difficulty establishing and maintaining work and social relationships because he was missing work due to depression and illness and had marital and family problems because of his lack of participation in family events. The examiner opined that the Veteran's occupational and social impairment with regard to all mental diagnoses was best summarized as occupational and social impairment with reduced reliability and productivity, and that he did not appear to pose a threat of danger or injury to self or others. On February 2011 psychiatric examination, the Veteran reported that he had been off from work for two months due to health problems, had monthly psychiatric appointments, and stayed in bed most of the day. He reported that he left his house and went to church less frequently, had trouble sleeping, had occasional thoughts of suicide, and had occasional visits from his grandchildren who lived nearby. He was given prescriptions of Celexa, Lamictal, and Klonopin; he had not been hospitalized or visited an emergency room due to his psychiatric condition. On mental status examination, the Veteran's orientation was normal, his appearance and hygiene were appropriate, and his affect and mood were flattened. His communication and speech were normal. He related that he was depressed, had impaired attention and focus, and experienced daily panic attacks. He related that although he experienced suspiciousness, he trusted his wife and son. The examiner indicated that the Veteran had intermittent inability to perform activities of daily living and perform self-care because his wife takes care of that and dresses him. He denied delusions, hallucinations, and obsessive-compulsive behavior. His thought process was normal, his judgment was not impaired, and he did not have homicidal ideation. The examiner opined that the Veteran's occupational and social impairment with regard to all mental diagnoses was best summarized as occupational and social impairment with decrease in work efficiency. Depression was diagnosed, and a GAF score of 40-45 was assigned. An August 2011 private psychiatric treatment record notes that the Veteran's current psychiatric symptoms included low mood, insomnia, irritability, anxiety, poor focus, and distractibility, and that his prescriptions included Citalopram, Bupropion, Adderall, and Clonazepam. An August 2011 TBI screen was negative for reported incidents in 1999 and 2007. On examination, the Veteran's speech was clear and coherent, his mood was dysthymic, and his affect was mood congruent. His thought processes were logical and linear, his thought content was devoid of delusions or hallucinations, and there was no sign of a thought disorder. He did not endorse current suicidal or homicidal ideation, but noted recent past passive suicidal thinking without intent or plan of action. A February 2012 Dewitt Army Community Hospital record notes that the facility had treated the Veteran since June 2011. He reported symptoms of low mood, insomnia, irritability, anxiety, poor focus, and distractibility. A February 2012 Walter Reed treatment record notes that the Veteran reported passive suicidal thoughts but denied intent, plan, or means. He had not followed up with therapy. A March 2012 Walter Reed treatment record notes that the Veteran reported he felt depressed and that he had not followed through with therapy. He took Zoloft and Celexa. On mental status examination, he was oriented times 3, had no hallucinations, and his memory and judgment were not impaired. His affect was constricted, and his thought processes were linear, logical, goal directed. He denied suicidal or homicidal intent or ideation, and there was no history of self-harm. A GAF of 60 was assigned. A June 2012 private treatment record notes that the Veteran reported suicidal ideation but did not have a current plan and had not been hospitalized for this. He receives psychiatric treatment every two weeks and related that he needs help getting dressed, can get in the tub, can get in the shower, and cannot do any of the cooking, cleaning, groceries because of back and breathing issues. He also cannot do normal household chores and cannot play with his grandchildren. The Board finds that throughout from (the earlier effective date of) May 18, 2008, the Veteran's depression most closely approximated a disability picture consistent with occupational and social impairment with deficiencies in most areas as contemplated by the criteria for the 70 percent rating. Regarding severity prior to June 22, 2012, VA and private treatment records note suicidal ideation prior to June 22, 2012. A June 2009 private provider statement and a June 2009 VA report of examination note that the Veteran reported intermittent suicidal thoughts (without plan or intent). Notably, the June 2009 provider indicated that he had treated the Veteran since 2005 and that he continued to report suicidal ideation during such treatment. The June 2009 private provider statement also includes an observation of definite impairment in the Veteran's social relations and that it was difficult for him to work consistently due to his frequent bouts of depression, anxiety, and attention problems. Additionally, on June 2009 VA examination, the examiner indicated that the Veteran's depressed mood occurred near continuously and affected his ability to function independently. On February 2011 VA examination, he continued to report suicidal ideation and although continuous depression was not noted, he did report daily panic attacks, suggesting that his level of occupational and social impairment due to his depression had remained consistent throughout. What is presented by the findings in the VA and private treatment records is a depression disability picture at least approximating occupational and social impairment with deficiencies in most areas (see 38 C.F.R. § 4.7 ), and resolving remaining reasonable doubt regarding degree of disability in the Veteran's favor as required (see 38 C.F.R. § 4.3 ), the Board concludes that a 70 percent rating is warranted throughout from May 18, 2008 (a year prior to the Veteran's May 18, 2009 claim for increase). The analysis progresses to whether the next higher, 100 percent, schedular rating is warranted for any period of time under consideration. A psychiatric disability picture of less that total impairment is strongly suggested by the level of functioning related to employment and social relations. Throughout, prior to June 22, 2012, the Veteran was able to work, although he did miss work at times due to mental and physical problems. On February 2011 examination, the examiner noted that the Veteran had intermittent inability to perform activities of daily living and perform self-care because his wife helps him with such activities and dresses him. Although this is a symptom included in the criteria for a 100 percent rating, the Veteran reported such assistance as consisting of helping him don his shoes and helping him rise from a chair. He was able to walk in unassisted to his appointment and sit and stand on his own. There was no mention of additional help needed, such with toileting. Significantly, symptoms noted during the evaluation period also do not suggest total impairment. Gross impairment in thought process or persistent delusions or hallucinations were not clinically noted. Nor has he displayed grossly inappropriate behavior, inability to tend to minimal hygiene, or substantial memory loss. While he reported a long history of suicidal ideation, such ideation does not appear to have resulted in any significant impairment; he has not been considered a persistent danger to self or others. A depression disability picture of total occupational and social impairment is not shown prior to June 22, 2012, and a schedular 100 percent rating prior to that date is not warranted. 3. Entitlement to SMC based on the need for regular aid and attendance is granted, effective July 27, 2018. SMC is an additional level of compensation paid to Veterans above the basic levels of compensation for various types of losses or levels of impairment solely due to service-connected disabilities. It reflects recognition by VA that certain disabilities, either alone or in combination, have an impact on a Veteran beyond the impairment of earning capacity which is central to the Rating Schedule. 38 C.F.R. § 4.1. SMC under 38 U.S.C. § 1114(l) is payable where a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or (as pertinent here) so helpless that he is in need of the regular aid and attendance (A&A) of another person. 38 C.F.R. § 3.350(b). Determinations as to the need for A&A must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: 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; inability of the 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 the hazards or dangers inherent in his daily environment. 38 C.F.R. § 3.352(a). Bedridden is that condition that requires the veteran to remain in bed, and 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. Id. It is not required that all of the enumerated factors in 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance; such eligibility requires at least one of the enumerated factors be present. The particular personal function that a veteran is unable to perform should be considered in connection with his condition as a whole, and it is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id.; see also Turco v. Brown, 9 Vet. App. 222 (1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue, including degree of disability, shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. On January 2013 aid and attendance examination (signed by the provider in June 2013), it was noted that the Veteran experienced chronic low back pain, depression, sleep apnea, hypertension, and asthma, and was bipolar. He was not confined to his bed and although he was able to feed himself, could not prepare his own meals. He needed assistance with bathing and tending to other hygiene needs (such as wiping) due to pain and poor balance. He was not legally blind and did not require nursing home care. He required medication management help due to memory impairment but was able to manage financial affairs with assistance from his wife. He used a wheelchair, and had upper and lower extremity weakness and decreased hand grip strength. He could stand for up to 4 hours, walk for up to 4 hours, and sit for up to 4 hours in a day. The Veteran was to avoid bending, stooping, crouching, and squatting, due to degenerative disc disease in his cervical spine and lumbar spine. He had bowel and bladder leakage and wore a diaper and had dizzy spells due to multiple medications for mental health. He was able to leave home for medical appointments, but could not drive due to memory impairment, dizziness, and chronic pain. He used ambulation aids and could walk 1 block. In an April 2013 statement, the Veteran's wife explained how she has to tend his daily needs. She related that his mental disabilities impact his decision making, conducting business transactions, and managing his medications. She indicated that she scheduled all his appointments, managed family finances, conducted all business transactions, and monitored and administered all his medications. She drove him to his medical appointments, cooked and prepared all his meals, and assisted him with his personal hygiene (including going to the bathroom). She indicated that he appointed her as special power of attorney so she can speak with his physicians, and as a result of the time required, she was unable to maintain a job because she had to make sure that she can do the things that need to be done for her husband. In June 2013, the Veteran filed his initial claim for SMC based on the need for regular aid and attendance, and as noted above, the claim was denied in a January 2014 rating decision, he filed an NOD, an SOC was issued in March 2017, and he did not file a Form 9. However, the Board was nonetheless directed to address such claim by the CAVC. An August 2013 VA treatment record notes that the Veteran was terminated from his job in December 2012 for too many absences. January 2014 Social Security Administration (SSA) records note that the Veteran reported continuous wear of knee braces and that he was limited in his ability to lift, squat, bend, stand, walk, sit, kneel, and climb stairs. He reported use of a rescue inhaler and nebulizer for asthma, and that his mental impairment included poor memory, difficulty completing tasks, poor concentration, and limitations in ability to get along with others. In a September 2015 statement, the Veteran's wife reported that he cannot stay on task or remember what the task is, she administers all his medications and makes sure his refills come in a timely manner, and drives him to medical appointments. She related that he stays in bed most days due to pain and discomfort, walks with a cane or uses a motorized scooter, and does not like going places, or visiting with friends. An October 2015 continuing disability review report notes the Veteran reported that he needed assistance dressing and that because of his degenerative joint disease (DJD), he can shower but not bathe, and his medications have to be administered by wife. He related that his wife prepared all the meals, he can feed himself, he does not do chores, he does not shop, and he uses a cane and wheelchair. He reported that he cannot stand for prolonged periods, can lift clothes and his toothbrush, experiences pain in his arms, has worsened grip due to DJD, can see well, and does not concentrate or remember well. At the June 2016 Board hearing, the Veteran testified that his wife helped him dress, bathe, and use the restroom and that he used a wheelchair. In a September 2016 medical statement, a VA provider noted that he had treated the Veteran since August 2015, and that based on observation and review of his records, his depressive symptoms such as confusion, memory problems, forgetfulness, difficulty with organization, and executive functioning appear to have caused major functional impairment for him in most areas of his life. An October 2017 VA treatment record notes that the Veteran reported that he felt bad that he had to rely on his wife for everything and cannot do much for himself. He related that she takes care of all his medical appointments. In a July 2018 statement, received on July 27, 2018, the Veteran's wife related that she has been his caregiver for the last 8 years, and that she schedules all his medical appointments, attends all sessions, drives him to all appointments, and manages his medication, and that she is the point of contact for physicians and other health care providers. She reported that she prepares all his meals and helps him by washing him, wiping and changing his pads, getting him out of bed, getting him dressed, putting on shoes and knee, back and hand braces, and getting him in and out of his wheelchair. She related that she serves as his POA for all matters and manages all the family's financial affairs. On January 2019 VA neck examination, the Veteran reported restricted movement (locking) of his neck, frequent headaches, left hand ulnar neuropathy, and decreased strength, numbness and tingling in his thumb and 4th and 5th fingers. He reported right wrist carpal tunnel syndrome with shooting pains to his fingers. On January 2019 VA spine examination, the Veteran reported more restrictions with walking, moving, standing, and sitting. He reported increased daily sciatic pain that radiated to both sides of his hips, more on the left side, with numbness and tingling to both legs and feet. The examiner opined that although the Veteran had limited mobility, standing, carrying, and lifting, there were no restrictions regarding his ability to engage in sedentary work. On January 2019 VA mental disorders examination, the examiner opined that the Veteran's depression disability picture was best characterized as total occupational and social impairment and that the primary cause of his depressed mood appeared to be his chronic hip, knee, back and neck pain. The Veteran reported confusion and difficulty with memory since hitting his head twice in falls, sleep impairment with frequent waking, and that he rarely goes out because he is afraid of falling (he usually uses a wheelchair, but was using a cane on examination because the wheelchair was broken). He related that he is always worried that he will have an accidental bowel movement, has no friends, and experiences suicidal ideation almost daily. The examiner indicated that the Veteran has an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On mental status examination, he was mostly oriented but could not correctly name the day of the week, his affect was at times tearful, and his mood was noted to be quite depressed. His speech was clear, coherent, and unpressured, his insight and judgment were fair, and he could not accurately spell WORLD backwards. He could read and comply with a simple instruction. The examiner noted that the Veteran was closely watched by his wife, who cares for his every need, but also indicated that he does report having suicidal ideation on a daily basis, and thus should be considered at increased but not currently imminent risk. The Veteran experiences chronic pain and spends virtually all of his time in a wheelchair in his room, withdrawn from other people. He does not have total bowel control, and requires his wife to clean him when he has an accident. He is also afraid to go anywhere because he has no firm control over his bowels. The Veteran is also easily confused and makes irrational inferences concerning the few social interactions he does have (for example, he believed that several of his doctors were "mocking" him, and thus has had difficulty maintaining continuity with individual practitioners). The examiner opined that the Veteran would have great difficulty establishing and maintaining relationships with others in a work environment. On February 2019 VA knee examination, the examiner opined that the Veteran's knee disabilities had some functional impact because he experienced pain walking short distances and cannot stand for more than 30 minutes without sitting. On February 2019 VA mental health examination, the examiner noted several mental health symptoms and indicated that the Veteran's depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short-and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships were all severe. His intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene was moderate to severe. In a February 2019 VA mental health opinion, the provider opined that the Veteran's ability to maintain gainful employment, be productive in the workplace and not be distracted by or be a distraction to co-workers is significantly limited as evidenced by his symptoms of depressed mood, anxiety, memory problems, disorganized thinking, irritability, poor sleep, and chronic pain. On February 2019 VA neck examination, the Veteran reported that his neck pain limits his neck movement and that he has pain looking in all directions, to include holding his head up. A March 2019 VA treatment record notes that the Veteran has severe spinal stenosis in his cervical spine and lumbar spine with bilateral sciatica. In a February 2021 statement, the Veteran's wife related that she as to help him in every aspect of his daily life. Due to his service-connected disabilities she must help him on a near-constant basis daily. She indicated that she prepares his meals and takes them to him in bed (where he is able to eat on his own), then retrieves the dishes while he sleeps. She wife related that she does all the chores since he remains in bed throughout the day and would experience excruciating pain due to his back, neck, radiculopathy, and knee disorders if he tried to do chores. She changes his adult diapers 5-6 times a day which can take 20-30 minutes per change, helps with showering and washing his hair, assists him getting in and out of shower chair, assists him with putting on his clothes, and often has to help him sit up in bed. The Veteran's wife related that she drives him to his appointments since he no longer drives, makes sure someone can stay with him if she has to leave the house, and makes sure he takes his medications. She reported that the Veteran has trouble communicating and becomes upset if she does not understand him, he is easily confused, and that she goes with him to all doctor's appointments. She has to remind the Veteran to keep up with personal appearance and hygiene and indicated that he would not be able to bathe without her help. She related that he does not generally know what day it is, does not remember names of family members, she has to remind him of almost everything, and he does not handle changes in his schedule very well. She indicated that she had to leave her employment in 2010 or 2011 to take care of him because she could no longer juggle work and watch after him. Throughout most of the earlier appeal period, there is evidence supporting that the Veteran was able to protect himself from the hazards of daily life and that aid and attendance of another was not required. Notably, on January 2013 Aid and Attendance examination, it was noted that he could stand for up to 4 hours, walk for up to 4 hours, and sit for up to 4 hours in a day. Also, in an October 2015 continuing disability review report, he reported that while he needed assistance dressing because of his DJD, he could shower (but not bathe), and his medications have to be administered by wife. He related that he could feed himself and ambulated with a cane or used a wheelchair, and indicated that although he could not stand for an extended time, he could lift clothes and his toothbrush (so he could brush his teeth). However, the medical evidence shows that his condition has deteriorated over time. In a July 2018 statement, the Veteran's wife reported that she schedules all his medical appointments, attends all sessions, drives him to all appointments, and manages his medication, and that she is the point of contact for physicians and other health care providers. She related that she prepares all his meals and helps him by washing him, wiping and changing his pads, getting him out of bed, getting him dressed, putting on his shoes and knee, back and hand braces, and getting him in and out of his wheelchair. She reported that she serves as his POA for all matters and manages all the family's financial affairs. On January 2019 examination, the examiner opined that the Veteran's depression disability picture was best characterized as total occupational and social impairment and that the primary cause of his depressed mood appeared to be his chronic hip, knee, back and neck pain. The examiner indicated that the Veteran has an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On mental status examination, he could not correctly name the day of the week, and it was noted that the Veteran was closely watched by his wife, who cares for his every need. He experiences chronic pain and spends virtually all of his time in a wheelchair in his room, withdrawn from other people. The Veteran does not have total bowel control, and requires his wife to clean him when he has an accident. The Veteran is also easily confused and makes irrational inferences concerning the few social interactions he does have. The Board finds that the evidentiary record described above reasonably supports that from July 27, 2018 (the date of receipt of the Veteran's spouse's letter describing his needs for assistance, confirmed on January 2019 VA examination), the Veteran is shown to have required the aid and attendance of another person to dress and undress, maintain grooming and hygiene, tend to the wants of nature, preparation of meals, and tending to basic household chores. Resolving reasonable doubt in his favor, as required under these circumstances (see 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102), the Board finds that SMC based on the need for regular aid and attendance is warranted from July 27, 2018. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.