Citation Nr: 21039924 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 12-20 844A DATE: July 1, 2021 ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for cirrhosis of the liver. 3. Entitlement to service connection for a heart disability. 4. Entitlement to service connection for high blood pressure. 5. Entitlement to service connection for a left hip disability. 6. Entitlement to service connection for a right hip disability. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for tinnitus. 9. Entitlement to a compensable disability evaluation for a surgical scar of the left knee. 10. Entitlement to a compensable disability evaluation for headaches. 11. Entitlement to an effective date prior to July 26, 2016 for service connection for headaches. 12. Entitlement to a disability evaluation greater than 70 percent for depressive disorder, not otherwise specified (NOS). 13. Entitlement to an effective date prior to July 26, 2016 for the 70 percent disability evaluation assigned for depressive disorder, not otherwise specified (NOS). 14. Entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s). ORDER The appeal seeking entitlement to service connection for a back disability is dismissed. The appeal seeking entitlement to service connection for cirrhosis of the liver is dismissed. The appeal seeking entitlement to service connection for a heart disability is dismissed. The appeal seeking entitlement to service connection for high blood pressure is dismissed. The appeal seeking entitlement to service connection for a left hip disability is dismissed. The appeal seeking entitlement to service connection for a right hip disability is dismissed. The appeal seeking entitlement to service connection for sleep apnea is dismissed. The appeal seeking entitlement to service connection for tinnitus is dismissed. The appeal seeking entitlement to a compensable disability evaluation for a surgical scar of the left knee is dismissed. The appeal seeking entitlement to a compensable disability evaluation for headaches is dismissed. The appeal seeking entitlement to an effective date prior to July 26, 2016 for service connection for headaches is dismissed. REMANDED Entitlement to a disability evaluation greater than 70 percent for depressive disorder, not otherwise specified (NOS) is remanded. Entitlement to an effective date prior to July 26, 2016 for the 70 percent disability evaluation assigned for depressive disorder, not otherwise specified (NOS) is remanded. Entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s) is remanded. FINDINGS OF FACT 1. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for a back disability. As such, the Board lacks jurisdiction to adjudicate this claim. 2. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for cirrhosis of the liver. As such, the Board lacks jurisdiction to adjudicate this claim. 3. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for a heart disability. As such, the Board lacks jurisdiction to adjudicate this claim. 4. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for high blood pressure. As such, the Board lacks jurisdiction to adjudicate this claim. 5. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for a left hip disability. As such, the Board lacks jurisdiction to adjudicate this claim. 6. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for a right hip disability. As such, the Board lacks jurisdiction to adjudicate this claim. 7. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for sleep apnea. As such, the Board lacks jurisdiction to adjudicate this claim. 8. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to service connection for tinnitus. As such, the Board lacks jurisdiction to adjudicate this claim. 9. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to a compensable disability evaluation for a surgical scar of the left knee. As such, the Board lacks jurisdiction to adjudicate this claim. 10. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to a compensable disability evaluation for headaches. As such, the Board lacks jurisdiction to adjudicate this claim. 11. No specific errors of fact or law have been alleged by the Veteran or his attorney as to the denial of entitlement to an effective date prior to July 26, 2016 for service connection for headaches. As such, the Board lacks jurisdiction to adjudicate this claim. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal seeking entitlement to service connection for a back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 2. The criteria for dismissal of the appeal seeking entitlement to service connection for cirrhosis of the liver have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 3. The criteria for dismissal of the appeal seeking entitlement to service connection for a heart disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 4. The criteria for dismissal of the appeal seeking entitlement to service connection for high blood pressure have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 5. The criteria for dismissal of the appeal seeking entitlement to service connection for a left hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 6. The criteria for dismissal of the appeal seeking entitlement to service connection for a right hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 7. The criteria for dismissal of the appeal seeking entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 8. The criteria for dismissal of the appeal seeking entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 9. The criteria for dismissal of the appeal seeking entitlement to a compensable disability evaluation for a surgical scar of the left knee have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 10. The criteria for dismissal of the appeal seeking entitlement to a compensable disability evaluation for headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. 11. The criteria for dismissal of the appeal seeking entitlement to an effective date prior to July 26, 2016 for service connection for headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.104 (c), 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1979 to October 1982 and from January 1983 to February 1989. He was awarded the Army Achievement Medal, among other decorations. These matters are before the Board of Veterans Appeals (Board) on appeal from August 2010, July 2016, and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that this appeal stems from merged legacy appeals streams, including multiple Statements of the Case (SOCs) and VA Form 9s. A review of the relevant history is instructive. By way of history, the Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2014 regarding the bilateral knee issues and his claim for a total disability rating based on individual unemployability (TDIU). A transcript of that proceeding has been associated with the claims file. Next, the Veteran through his attorney submitted a May 2017 Notice of Disagreement (NOD) for all issues currently on appeal before the Board. It contains no argument, suggested ratings, suggested effective dates, or other contentions for all issues. In March 2018, the bilateral knee and TDIU issues were again remanded by the Board for additional development. Later, during the pendency of his appeals, a March 2020 rating decision granted an earlier effective date for service connection for left knee surgical scar. A June 2020 rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU) and basic eligibility to Dependents' Educational Assistance effective July 26, 2016. The rating decision reads in part, "THIS IS CONSIDERED A FULL GRANT ON APPEAL AND YOUR APPEAL ISTHEREFORE CONSIDERED SATISFIED IN FULL." (capitalization in original.) As a separate matter, a June 2021 Appeals Modernization Act (AMA) rating decision denied entitled to an earlier effective date for a TDIU. The Veteran had filed a June 7, 2021 VA Form 20-0996 Request for Higher-Level Review. To date, any earlier effective date TDIU issue has not been appealed to the Board. For example, it is not listed in the Supplemental Statements of the Case (SSOCs) or either VA Form 9. Distinctly, this was a recent AMA rating decision. Still, the Veteran through his attorney had referenced the issue of an earlier effective date for a TDIU in the December 2020 Brief. The Veteran through counsel was reminded of this in the March 2021 Board letter. No direct response was received. To the extent the Veteran wishes to pursue an appeal related to this issue, he must file a timely Notice of Disagreement (NOD) on a form prescribed by the Secretary. 38 U.S.C. § 7105. Once again, the Veteran is in receipt of a TDIU from July 26, 2016. AB v. Brown, 6 Vet. App. 35, 38 (1993). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). Significantly, the Veteran through his attorney perfected his appeals by way of a March 2020 VA Form 9 listing twelve issues, and a May 2020 VA Form 9 listing one issue of entitlement to an effective date prior to July 26, 2016 for the 70 percent disability evaluation assigned for depressive disorder, not otherwise specified (NOS). Later, in a VA 21-4138 Statement in Support of Claim dated in December 2020, the Veteran denied requesting and withdrew any prior Travel Board hearing request. On December 9, 2020, VA received a "Veteran's Brief in Response to Docket Notice(s)" (Brief) from counsel. In it, the Veteran only lists and discusses the issues characterized as entitlement to an evaluation greater than 50 percent for the initial service connection for depressive disorder NOS, to include entitlement to an earlier effective date for individual unemployability. The Veteran through counsel waived RO review of additional evidence. In response, on March 12, 2021, VA sent the Veteran and his attorney a detailed letter informing him of the status of his pending appeals before the Board. It clearly described that this was to provide notice of potential jurisdictional defects in these appeals. The letter summarized the procedural posture of the case and issues certified to the Board. The VA letter reads, "Next, the Board is going to consider whether your Substantive Appeal was adequate as to the unaddressed issues not discussed in the Brief." The letter reminded the Veteran and his attorney of the jurisdictional requirements for a substantive appeal in that it must allege a specific error of fact or law. It reads: In your case, we found that as to the issues listed in the March 2020 VA Form 9 that your Substantive Appeal was defective because it contained no arguments relating to errors of fact or law made by the AOJ in reaching its determinations with respect to the issues cited above. Your attorney has submitted arguments with respect to other issues on appeal, i.e. the issue the December 2020 Brief. He has not, however, submitted any evidence or argument regarding the other issues cited above, including in the Substantive Appeal. The Brief also discusses an earlier effective date for a total disability rating based on individual unemployability (TDIU), which is not listed in either VA Form 9. The Veteran through counsel did not address this on the merits, nor did he attempt to satisfy the critical requirements identified in the letter. On March 31, 2021, VA received a completed Substantive Appeal Response From that shows an indication that the Veteran through his attorney did not have any additional evidence or argument. Having provided ample notice and opportunity to the Veteran and his attorney, VA will proceed accordingly. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). (Continued in next page.) Defects in Substantive Appeal 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for cirrhosis of the liver 3. Entitlement to service connection for a heart disability 4. Entitlement to service connection for high blood pressure 5. Entitlement to service connection for a left hip disability 6. Entitlement to service connection for a right hip disability 7. Entitlement to service connection for sleep apnea 8. Entitlement to service connection for tinnitus 9. Entitlement to a compensable disability evaluation for a surgical scar of the left knee 10. Entitlement to a compensable disability evaluation for headaches 11. Entitlement to an effective date prior to July 26, 2016 for service connection for headaches The Board incorporates its discussion from the sections above by reference. A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 19.22. (c) Authority to determine jurisdiction. The Board shall decide all questions pertaining to its jurisdictional authority to review a particular case. When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the same as the date stamped on the letter of notification. The Board may dismiss any case over which it determines it does not have jurisdiction. 38 C.F.R. § 20.104 (c). By way of background, in the March 2021 Substantive Appeal Response Form, the Veteran through his attorney indicated that he had no additional evidence or argument to submit. The VA letter had notified the Veteran and his attorney, "It is possible that the Board's consideration of this question could result in dismissal of your appeal as to the issues for which a VA Form 9 was filed but are not addressed with any argument in the Form or later in the December 2020 Brief." Here, as the Veteran's attorney has been made aware, under the legacy appeal system, a valid substantive appeal requires that the claimant (or his representative) "set out specific arguments relating to errors of fact or law made" as to the issues being appealed. 38 C.F.R. § 19.22 (formerly 38 C.F.R. § 20.202). When this standard as not met, "the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination" being appealed. Id. In this case, the substantive appeals submitted by the Veteran's attorney contained no evidence or argument as to any of these eleven issues on appeal. He elected not to submit additional evidence or argument. The eleven appeals are now being dismissed at this stage of adjudication pursuant to VA regulations. In taking such action, the Board observes that the Veteran's attorney was informed of his procedural obligations in perfecting an appeal and afforded an opportunity to allege an error of fact or law. Therefore, these appeals are dismissed for lack of jurisdiction. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In light of the Veteran and his attorney's detailed contentions in the December 2020 Brief, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability evaluation greater than 70 percent for depressive disorder, not otherwise specified (NOS) is remanded. The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Depressive disorder not otherwise specified (NOS) is currently rated in relevant part as 70 percent disabling from July 26, 2016 pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. A 70 percent rating is warranted for 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 rating of 100 percent 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. By way of background, the Veteran was most recently afforded a November 2019 VA mental disorders examination. The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed an examination. The VA examiner indicated that the Veteran's level of occupational and social impairment is best summarized by, "Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." The VA examiner wrote, "Veteran's current psychosocial functioning appears to be marked by such symptoms as near continuous depression, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining affective relationships, difficulty adapting to stressful circumstances, and suicidal ideation." Still, the Veteran reported having friends through church, and going to the gym "on and off." He does some housecleaning. He has two puppies. He watches television and does some reading. Next, on December 9, 2020 VA received a report from Dr. S. W. E., a private consultant, dated November 13, 2020. It shows that Dr. E. "consulted" with the Veteran after reviewing the claims file. When Dr. E. consulted with the Veteran on November 13, 2020, the Veteran reported that he struggled with past employment for many reasons. These included knee disability and pain that distracted him at work. The Veteran described conflicts with coworkers and that he was fired from his job due to lack of production and an inability to adapt to changes in the workplace. He struggled to find work, but finally did as a paid caregiver. He was taking care of his stepdaughter. However, he was unable to handle this job due to pain and a past suicide attempt. The Board observes that this consultant's report does not show that a complete, in-person psychiatric examination was performed. No examination results or other clinical notes are offered. Dr. E. only offers that he "consulted" with the Veteran. In short, the examination is limited. Also on December 9, 2020, VA received a letter from the Veteran. It shows that depression was a "big issue while working." The Veteran did not handle stress or dealing with others well. He had panic attacks and isolated at work. In the December 2020 Brief, the Veteran's attorney summarizes the historical evidence of record as it relates to the severity of depressive disorder. Counsel quotes several sections from Dr. E.'s consultation report. The message in all of this is that the Veteran alleges that the current disability evaluation does not adequately contemplate the severity of depressive disorder. The selections of evidence regarding unemployability as part of the increased rating claim can be liberally construed in context as an argument that a total 100 percent disability evaluation for depressive disorder is warranted due to total occupational and social impairment. The Veteran through his attorney essentially asserts that the Veteran is unable to maintain gainful employment, attend college, or work with others largely due to his mental health symptoms. Here, the Veteran through his attorney has identified evidence that suggests more severe symptoms than found in the previous 2019 VA mental health examination. There is an inconsistency in the severity of symptoms as they relate to occupational and social impairment between the previous evidence of record and this new evidence. As the consultation is limited, this cannot from the basis for an increased rating by itself. Nevertheless, it suggests a worsening of the severity of depressive disorder when considered in conjunction with the Veteran's lay statements. Indeed, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Veteran through his attorney has continued to assert as much by way of the December 2020 lay statement and Brief. The Veteran described impairment reportedly due to his depressive disorder and other disabilities. Related to the Veteran's lay reports, the Board observes that in Miller v. Wilkie, 32 Vet. App. 249 (2020), the United States Court of Appeals for Veterans Claims (Court) held that when a VA examiner fails to address relevant lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. The detailed lay statement, cited in the Brief, was received after the most recent VA examination. The record contains updated evidence of impairment in suicidal ideation, difficulty working with people, and anxiety. Therefore, to determine the current severity of depressive disorder, the Veteran should be afforded a new VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Pursuant to Miller, the VA examiner should review the lay submissions from the Veteran described above. This will assist the Board in assessing the credibility of his lay reports to the extent they establish more severe impairment. Therefore, a remand is necessary to ensure due process is followed and so that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Entitlement to an effective date prior to July 26, 2016 for the 70 percent disability evaluation assigned for depressive disorder, not otherwise specified (NOS) is remanded. This issue is inextricably intertwined with the increased rating claim being remanded for additional development. Therefore, a final decision on this issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Hence, a remand of this issue is also warranted. 3. Entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s) is remanded. The Board incorporates its discussion from the sections above by reference. As described below, this issue has been raised by record in light of the earlier grant of a TDIU, and must now be remanded for development and adjudication by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 19.9. In order to qualify for SMC at the § 1114(s) level, the Veteran must have a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of a service-connected disability or disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Here, the RO has granted entitlement to a TDIU based on the Veteran's service-connected disabilities. Although not rated as 100 percent disabling, for SMC purposes this condition satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In addition to the Veteran's depressive disorder currently rated as 70 percent disabling discussed above, service connection is in effect for additional service-connected disabilities including: left knee surgical scar, right and left knee patellofemoral pain syndrome, and headaches. He has combined ratings of 0 percent from February 4, 1989, 50 percent from June 25, 2012, 100 percent (convalescence) from October 21, 2013, 50 percent from January 1, 2014, and 70 percent from July 26, 2016. He is in receipt from a TDIU from July 26, 2016. Regarding possible housebound status, he has continued to describe isolation to his home. In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, on remand the RO must first determine whether the Veteran is entitled to SMC benefits under 38 U.S.C. § 1114(s). This includes sending the Veteran and his attorney the proper paperwork to fully develop the claim, including a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. In the interest of expediting this appeal, the Board finds that the Veteran's primary care provider or other medical professional should complete the form in the first instance. This which would likely provide highly probative evidence necessary to properly adjudicate this matter. The Veteran through his attorney is also invited to submit any private medical opinions to support this claim. If this evidence is not received, the issue will be adjudicated based upon the evidence of record. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records, and associate them with the Veteran's claims folder. 2. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected depressive disorder, not otherwise specified (NOS). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any symptoms. The examiner should also comment on the Veteran's ability to function in occupational and social environments. Attention is invited to the lay evidence submitted along with the December 2020 Brief. A complete rationale should be provided for all opinions expressed. 3. Send the Veteran a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance to be completed and returned to VA. If this is not received or not fully completed, the case will be adjudicated based upon the evidence of record. (Continued on the next page.) 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his attorney an appropriate Supplemental Statement of the Case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.