Citation Nr: 21041803 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-31 459A DATE: July 10, 2021 ORDER Entitlement to an evaluation in excess of 50 percent prior to May 1, 2014, and in excess of 70 percent thereafter, for major depressive disorder is denied. Entitlement to service connection for headaches, to include as secondary to vertigo, is denied. REMANDED Entitlement to special monthly compensation based on aid and attendance is remanded. Entitlement to specially adapted housing is remanded. Entitlement to a special home adaption grant is remanded. FINDINGS OF FACT 1. Prior to May 1, 2014, the Veteran's major depressive disorder was characterized by occupational and social impairment with reduced reliability and productivity. 2. From May 1, 2014, the Veteran's major depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas. 3. The Veteran's headaches did not have its onset in service, are not related to service, and were not caused or aggravated by vertigo. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent prior to May 1, 2014, and in excess of 70 percent thereafter, for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 9434. 2. The criteria for service connection for headaches, to include as secondary to vertigo, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1979 to July 1983 and from January 1986 to August 1987. This claim was previously before the Board in January 2019, at which time the Board remanded it for additional development. The requested development has been completed on the issues of entitlement to increased evaluations for major depressive disorder and service connection for headaches, and those issues are properly before the Board for appellate consideration. Additional development is needed on the issues of entitlement to special monthly compensation based on aid and attendance, specially adapted housing, and a special home adaption grant. 1. Entitlement to an evaluation in excess of 50 percent prior to May 1, 2014, and in excess of 70 percent thereafter, for major depressive disorder Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped form of 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, is rated 50 percent. 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; having 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); and inability to establish and maintain effective relationships, is rated 70 percent. 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; and memory loss for names of close relatives, own occupation, or own name, is rated 100 percent. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Regarding the period prior to May 1, 2014, at October 2012 VA treatment the Veteran was alert and oriented to time, place, and person. He denied suicidal and homicidal ideation and hallucinations. The Veteran said he got anxious a couple of times a week and had problems maintaining sleep. Subsequent treatment records show that the Veteran continued to deny suicidal and homicidal ideation and that he was oriented to time, place, and person. It was noted at April 2013 treatment that memory was grossly intact, thought process was slow, thinking was concrete, judgment was fair, and the Veteran had insight into his problems. The Veteran acknowledged a past history of suicidal ideation at October 2013 mental health treatment, and said he would not take his own life due to his religious beliefs. He lived with his wife, who assisted him with activities of daily living. His mother and sister lived ten miles away, and he said he was close with his siblings. The Veteran had three children and seven grandchildren, and his siblings and children visited him. The treating social worker felt that the Veteran was withdrawn and isolated due to pain and major depressive disorder. The Veteran felt without worth and hopeless. He was discouraged that he could no longer fish, play sports, or play with his grandchildren. The Veteran was having a panic attack at VA treatment later in October 2013, and he was able to calm down after ten minutes. At November 2013 VA treatment the Veteran said that the love and support of his family, and his commitment to them, were significant protective factors. The Veteran said at treatment later in November 2013 that he had good and bad days. The preponderance of the evidence does not show that prior to May 1, 2014, the Veteran had occupational and social impairment with deficiencies in most areas, as required for a 70 percent evaluation, the next highest available after 50 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Although the Veteran reported past suicidal ideation at October 2013 VA treatment, and such ideation is significant, the record shows that he has generally denied suicidal or homicidal ideation during the instant claims period. The Veteran said at August 2014 VA treatment that his last suicidal thought was in 1995 and that he had no history of suicidal attempts. The record as a whole indicates that suicidal ideation did not reflect the Veteran's general state of mind. While the Veteran isolated himself, the record shows that he maintained relationships with family members. The record also shows that the Veteran was oriented to person, place, and time, memory was intact, and he denied hallucinations. Overall, the Veteran's symptomatology was not consistent with occupational and social impairment with deficiencies in most areas prior to May 1, 2014. See id. Regarding the period from May 1, 2014, on that date a VA treating psychologist opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran's symptoms were depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory impairment, flattened effect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. At June 2014 VA mental health treatment, the Veteran said that his mood had continued to improve and that he had spent more time outside playing with his puppy, grilling meals with his wife, and engaging in activities with his grandchildren. He denied current suicidal ideation, intent, or plan, or homicidal ideation or intent. The Veteran was noted to be a low risk of imminent harm to himself or others. He was appropriately dressed and groomed, acted appropriate and cooperative, had no disturbance in thought, and was alert and oriented to person, place, time, and situation. The Veteran had a VA examination in August 2014, and the examiner opined that he had occupational and social impairment with reduced reliability and productivity. Symptoms were depressed mood, chronic sleep impairment, flattened effect, disturbance of motivation and mood, difficulty in being able to establish and maintain effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran said at August 2014 VA treatment that he had previously neglected his appearance due to feelings of frustration and depression, and that he was ready to start with a fresh perspective and a more positive outlook. It was noted that he was appropriately dressed and neatly groomed, his eye contact was appropriate, behavior appropriate and cooperative, and insight and judgment fair. The Veteran was oriented to person, place, time, and situation. He cited the support of his family as a protective factor. The Veteran also said at August 2014 VA treatment that his last suicidal thought was in 1995 and that he had no history of suicidal attempts. His wife said that spending time with their grandchildren helped the Veteran cope. At March 2015 VA treatment the Veteran denied suicidal or homicidal ideation, plan, or intent. He was oriented to time, place, and person, and memory function was grossly intact. The Veteran did not have hallucinations or delusions. Subsequent treatment records show similar symptomatology. The Veteran reported being depressed at November 2016 VA treatment. He was alert, cooperative, and casually dressed. It was noted that he had insight into his problems and did not have hallucinations or delusions. The Veteran was oriented to time, place, and person at February 2017 VA treatment with recent and remote memory grossly intact. Attention span and concentration were diminished. The Veteran denied hallucinations or suicidal or homicidal ideation, plan, or intent. He reported being stressed and angry. At June 2017 treatment attention span and concentration were diminished and thought process organized with no loosening of association. The Veteran was oriented to time, place, and person. He denied suicidal or homicidal ideation, plan, or intent. At November 2018 VA treatment the Veteran was alert, cooperative, and casually dressed. Mood was anxious and angry, affect constricted, and he denied auditory or visual hallucinations or delusions. Thought process was organized, and the Veteran was oriented to time, place, and person. Recent and remote memory were intact. The Veteran had an examination scheduled through VA in September 2019, and the examiner opined that the major depressive disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Symptoms were depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, suicidal ideation, impaired impulse control, and the intermittent inability to perform activities of daily living. The Veteran noted ongoing depression for several years stemming from frustrations in dealing with his health and difficulties accessing care through VA. At November 2019 VA psychiatric treatment the Veteran reported being stressed and angry, and it was noted that he was quite preoccupied. Mood was anxious and angry, and the Veteran was oriented to time, place, and person. The Veteran denied suicidal or homicidal ideation, plan, or intent, and denied hallucinations. The Veteran does not qualify for a 100 percent evaluation from May 1, 2014, the next highest available, which requires total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The record does not indicate that he has had hallucinations or delusions. The Veteran has not been a danger to himself or others, and the examinations and treatment records show that the Veteran has consistently been oriented to time, place, and person. Furthermore, the Veteran has maintained relationships with his family, and any memory loss has been mild. Although the Veteran has some symptoms associated with a 100 percent rating, such as intermittent inability to perform activities of daily living, the record as a whole does not show total occupational and social impairment as contemplated for a 100 percent rating. See id. In light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to additional "staged" ratings for his service-connected major depressive disorder, as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Because the evidence preponderates against the claim for an evaluation in excess of 50 percent for major depressive disorder prior to May 1, 2014, an in excess of 70 percent from that date, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for headaches, to include as secondary to vertigo To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The service treatment records (STRs) show that in March 1981 the Veteran was diagnosed with the flu and bronchitis after complaining of symptoms that included headaches. On July 1983, August 1987, December 1990, August 1994, February 1996, and April 2001 medical history reports the Veteran reported that he had never had frequent or severe headaches. At May 2002 VA treatment the Veteran complained of chronic left temporal occipital headaches. He said that he was beaten almost to death in 1995 and that he had headaches since "the accident." The Veteran reported having headaches at a July 2012 VA general medicine examination. He was diagnosed with chronic, tension-like headaches. Subsequent VA treatment records show complaints of headaches. The Veteran complained of headaches after falling from a wheelchair in October 2013. A CT scan of the head was normal. The Veteran had a VA examination for headaches in August 2014 at which he diagnosed with tension headaches. While the examiner wrote that the headaches were first diagnosed in 2012, other parts of the examination report show that the diagnosis was in 2002. The Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain once a month. The examiner opined that the headaches were less likely proximately due to or the result of the service-connected vertigo. It was noted that while the Veteran had headaches at May 2002 VA treatment, it was attributed to post-service trauma. Furthermore, the Veteran had a well-established pattern of vertigo during service without evidence of associated headaches. It was also noted that the Veteran reported ongoing headaches since the 1980s but had repeatedly denied headaches on medical history reports. While vertigo can be associated with migraine headaches, the Veteran does not meet the diagnostic criteria for migraines because vertigo and nausea pre-dated the headaches, and the headaches were of a chronic tension type. The Veteran had an examination arranged through VA in October 2019 at which he was diagnosed with tension headaches. He reported having migraines during service which he treated with ibuprofen when he was not given anything after reporting them at treatment. The examiner opined that the Veteran's headaches were less likely than not caused by the claimed in-service event, injury, or illness. It was noted that there is clinical evidence of tension headaches. The Veteran's medical records show that they were attributed to post-service trauma. The STRs show no reports of chronic, recurrent, or severe headaches, including the medical history reports. The examiner also opined that the Veteran's headaches are less likely than not proximately due to or the result of the service-connected condition because there is no clinical evidence that they are caused by or due to psychiatric disabilities. The Veteran had a well-established pattern of vertigo during service without any evidence of associated headaches. There is no documented evidence that the diagnosed headaches have any association to the service-connected vertigo. There is objective medical documentation from 2002 correlating the onset of headaches to trauma in 1995. The Veteran's headaches were tension headaches, which are not known to be caused by any vertigo condition. Therefore, a nexus between the two conditions could not be made. It is less likely than not that the tension headaches are due to or the result of the service-connected vertigo. The Veteran wrote in February 2020 that he suffered from headaches during service and did not go to medical for everything. In October 2020 the Veteran wrote that when he reported headaches during service, he was not given anything for them, so he treated them himself with aspirin. The examiner wrote in October 2020 that the Veteran has a diagnosis of tension headaches aggravated by vertigo and the psychiatric disorder. There is clinical evidence that there is a common predisposition to anxiety disorders, depression, and migraines. Furthermore, there is also clinical evidence that migraines and chronic daily headaches are common in people who suffer from anxiety disorders. Researchers have suggested a common predisposition to anxiety disorders, depression, and migraines. The examiner noted the Veteran's report of first having headaches in 1980 and not receiving any treatment for them when he went to sick call. Later in October 2020, the examiner wrote that the Veteran's tension headaches were less likely aggravated beyond their natural progression by the service-connected depression and vertigo. There is not a known medical link between tension-type headaches and vertigo or depression. Vertigo can be a precursor to migraines. However, the Veteran suffers from tension headaches and not migraines. The examiner further noted that the treatment records show that headaches were attributed to trauma after service and that the STRs show no reports of chronic, recurrent, or severe headaches. This includes the vertigo evaluation worksheet in the STRs, on which the Veteran did not mark headaches as a symptom or problem. The Veteran had well-established patterns of vertigo while in the military without evidence of associated headaches. The Veteran is competent to report that he has had chronic headaches since during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, the Board does not find him credible in this regard. On July 1983, August 1987, December 1990, August 1994, February 1996, and April 2001 medical history reports the Veteran indicated that he had never had frequent or severe headaches. In addition, the Veteran did not check yes for having had headaches when dizzy on an equilibrium questionnaire from the STRs that appears to have been completed in 1987. The Board finds the Veteran's contemporaneous reports regarding not having recurrent headaches and headaches when dizzy to be of greater probative value that his later reports. While the Veteran has made statements to the effect that he feels that his headaches are related to service and the service-connected vertigo, he is not competent to make such a determination, because the question of whether it is related to service is a medical question. His statements on etiology are therefore afforded little, if any, probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Regarding the examiner's opinions from October 2019 and October 2020, probative value is not given to the first October 2020 opinion that the Veteran's tension headaches were aggravated by vertigo and psychiatric disabilities. The rationale includes discussion of migraine headaches, which the record does not show the Veteran having. Furthermore, the rationale includes the Veteran first having headaches in 1980, and as discussed above, the Board does not find it credible that the Veteran has had recurrent headaches since then. Therefore, this opinion is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). Probative value is given to the opinion from later in October 2020 that the Veteran's headaches are tension headaches that were less likely aggravated beyond their natural progression by the service-connected depression and vertigo because it was based on the Veteran's history, the type of headaches he has, and a medical analysis. See Nieves-Rodriguez, 22 Vet. App. at 304. In addition, probative value is given to the October 2019 and August 2014 examiners' opinions that the headaches are less likely proximately due to or the result of a service-connected disability, including vertigo. These opinions are also based on an application of the Veteran's history to a medical analysis. See id. There are no competent and probative opinions that the Veteran's headaches are related to service on a direct basis or as secondary to a service-connected disability, including vertigo. Because the evidence preponderates against the claim of service connection for headaches, to include as secondary to vertigo, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND 1. Entitlement to special monthly compensation based on aid and attendance is remanded. Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant 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. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The performance of necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Special monthly compensation may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout the Veteran's lifetime. Id. Service connection is in effect for major depressive disorder and vertigo. The record shows that the Veteran's wife assists him with activities of daily living. It is not clear from the record whether this is due to service-connected disability, or nonservice-connected disabilities, which include Parkinson's disease. Therefore, the Veteran must be scheduled for an examination before the claim can be decided on the merits. 2. Entitlement to specially adapted housing is remanded. 3. Entitlement to a special home adaption grant is remanded. Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is additionally available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities, such as to preclude locomotion; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion as to preclude unaided locomotion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if the veteran has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of his or her vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran who has a service-connected permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a. "Loss of use" is not specifically defined under 38 C.F.R. § 3.809 or 3.809a. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court of Appeals for Veterans Claims has found that a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). Service connection is in effect for major depressive disorder, rated 70 percent, and vertigo, rated 30 percent. The combined rating is 80 percent. A total disability rating based on individual unemployability (TDIU) is in effect. The record shows that the Veteran uses a wheelchair. The Veteran must be scheduled for a VA examination to determine whether the service-connected disabilities interfere with locomotion, balance, and propulsion. VA treatment records to August 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from August 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain VA treatment records from August 2020 to the present. 2. Thereafter, schedule the Veteran for a VA examination for aid and attendance and housebound status. All pertinent evidence in the claims file should be made available to and reviewed by the examiner. The VA examination report should contain sufficient information to determine whether the Veteran's service connected disabilities, major depressive disorder and vertigo, render him helpless, or so nearly helpless, so as to require the regular aid and attendance of another person (with comment on the Veteran's ability to dress/undress, keep ordinarily clean/presentable; whether he requires any frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; is able to feed himself; can attend to the wants of nature; or requires assistance on a regular basis to protect himself from hazards/dangers incident to his daily environment). The examiner should consider the effect of any medications that the Veteran takes for his service-connected disabilities. A complete rationale for all opinions expressed should be provided. If the examiner finds that an opinion cannot be made without resort to speculation, the examiner should so state and explain why this is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of the service-connected disabilities as they relate to loss of use of the extremities. The Veteran's claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should state whether the Veteran requires braces, crutches, canes, or a wheelchair in order to ambulate on at least an occasional basis, including the frequency with which any such assistive device is required. The examiner should also opine as to whether the Veteran's service-connected disabilities cause: The loss of use of both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. As used here, the term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. The examiner should fully describe the objective findings to support any conclusions (e.g., with respect to range of motion, instability, weakness, atrophy, tone, callosities, etc.), and should provide a complete rationale for all opinions expressed. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case, including whether a new in-person examination in necessary. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.