Citation Nr: 21042501 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-52 984 DATE: July 13, 2021 ORDER Entitlement to an increased, 30 percent disability evaluation for irritable bowel syndrome with constipation and occasional fecal incontinence, for the rating period prior to September 6, 2018, is granted. Entitlement to an increased disability evaluation for irritable bowel syndrome with constipation and occasional fecal incontinence, rated as 30 percent disabling for the rating period since September 6, 2018, is denied. Entitlement to an increased, 60 percent disability evaluation for bladder sphincter impairment, for the rating period prior to September 6, 2018, is granted. Entitlement to an increased disability evaluation for bladder sphincter impairment, rated as 60 percent disabling for the rating period since September 6, 2018, is denied. Entitlement to an increased, 100 percent disability evaluation for depression, for the rating period prior to August 28, 2018, is granted. Entitlement to an increased disability evaluation for depression, rated as 100 percent disabling for the rating period since August 28, 2018, is denied. Entitlement to an effective date of October 11, 2011 for the grant of a special monthly compensation (SMC) on the basis of aid and attendance at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, is granted. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's irritable bowel syndrome with constipation and occasional fecal incontinence is manifested by severe symptoms with frequent episodes of bowel disturbance with near-constant abdominal distress and alternating diarrhea and constipation; there is no evidence of ulcerative colitis. 2. The Veteran's bladder sphincter impairment most closely approximates continual urine leakage, urinary incontinence, or stress incontinence requiring the use of absorbent material which must be changed more than 4 times per day. 3. For the entire rating period on appeal, the Veteran's depression is productive of occupational and social impairment due to symptoms such as impaired thought processes, memory loss, disturbance of mood and motivation, difficulty concentrating, anxiety, sleep impairment, and depression, with intermittent inability to perform activities of daily living. 4. VA's rating schedule does not provide for an evaluation higher than 100 percent for depression; the Veteran already has this rating for the entire rating period on appeal, and his depression does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 5. The Veteran is entitled to SMC under 38 U.S.C. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(4) at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, effective October 11, 2011, the effective date of an increased, 100 percent disability evaluation for depression. CONCLUSIONS OF LAW 1. The criteria for an increased 30 percent disability rating for irritable bowel syndrome with constipation and occasional fecal incontinence have been met for the rating period prior to September 6, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.113, 4.114, Diagnostic Code 7319 (2020). 2. The criteria for a disability evaluation in excess of 30 percent irritable bowel syndrome with constipation and occasional fecal incontinence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.113, 4.114, Diagnostic Code 7319 (2020). 3. The criteria for an increased 60 percent disability evaluation for bladder sphincter impairment for the rating period prior to September 6, 2018 have been met. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7542 (2020). 4. The criteria for a disability evaluation in excess of 60 percent for bladder sphincter impairment for the rating period since September 6, 2018 have not been met. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7542 (2020). 5. The criteria for a disability rating of 100 percent for depression are met for the rating period prior to August 28, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2020). 6. The criteria for a disability rating in excess of 100 percent for depression are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2020). 7. The criteria for an effective date of October 11, 2011 for the award of SMC at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1974 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The September 2012 rating decision granted the Veteran an increased, 50 percent disability evaluation for depression, effective October 11, 2011, as well as denied the Veteran's claims of entitlement to increased disability evaluations for bladder sphincter impairment and irritable bowel syndrome; the September 2012 rating decision also denied the Veteran's claim of entitlement to a higher level of SMC based on aid and attendance. During the pendency of the appeal, in an October 2016 rating decision, the Veteran was granted an increased, 40 percent disability evaluation for his bladder sphincter impairment, effective October 11, 2011. A March 2019 rating decision awarded the Veteran an increased, 100 percent disability evaluation for his depression, effective August 28, 2018; an increased, 60 percent disability evaluation for his bladder sphincter impairment, effective September 6, 2018; and an increased, 30 percent disability evaluation for his irritable bowel syndrome, effective September 6, 2018. This rating decision also granted the Veteran SMC on the basis of aid and attendance at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, effective August 28, 2018. As the Veteran has not been granted the maximum benefits allowed, the claims of entitlement to increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board acknowledges that a statement from the Veteran's treating provider at VA was associated with the Veteran's electronic claims file following the issuance of the most recent supplemental statement of the case. However, remand for review by the AOJ in the first instance is not required. To the extent that the statement is relevant to the issues on appeal, the statement constitutes a summary of the information found in the VA treatment records of record, and thus is duplicative of those VA treatment records considered in the March 2019 supplemental statement of the case. See 38 C.F.R. §§ 19.37(a), 20.1305(c) (2020). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for irritable bowel syndrome with constipation and occasional fecal incontinence, rated as 10 percent disabling for the rating period prior to September 6, 2018. 2. Entitlement to an increased disability evaluation for irritable bowel syndrome with constipation and occasional fecal incontinence, rated as 30 percent disabling for the rating period since September 6, 2018. The Veteran's irritable bowel syndrome with constipation and occasional fecal incontinence is currently evaluated as 10 percent disabling for the rating period prior to September 6, 2018; a 30 percent disabling is assigned for the rating period since September 6, 2018. His disability evaluations are assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. According to Code 7319, a noncompensable disability evaluation is assigned for mild irritable bowel syndrome, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability evaluation requires moderate irritable bowel syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent disability evaluation requires severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Code 7319. There is no higher evaluation available under this rating code. Initially, the Board notes that a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See also 38 C.F.R. § 4.113 (coexisting abdominal conditions); 38 C.F.R. § 4.14 (avoidance of pyramiding). The evidence of record indicates that the Veteran's IBS is productive of alternating constipation and fecal incontinence with mor or less constant abdominal distress. At the November 2011 VA examination, the Veteran described chronic bowel problems with alternating fecal incontinence with constipation. At a May 2012 intestinal examination, the Veteran reported taking medication for control of his IBS; he reported experiencing alternating diarrhea with constipation due to medication used to treat the constipation. He also reported frequent episodes of bowel disturbance with abdominal distress, with near constant abdominal distension. An August 2016 VA intestinal examination showed that the Veteran reported experiencing chronic constipation with abdominal distension and nausea. The VA examiner noted that the Veteran did not report experiencing fecal incontinence or episodes of bowel disturbance; the VA examiner noted that a colonoscopy showed diverticulitis. At the most recent, September 2018 VA intestinal examination, the Veteran reported experiencing alternating constipation and diarrhea; he also complained of abdominal cramps with bloating and that he avoids taking certain medications that have been prescribed for his constipation as the medications cause fecal incontinence. The VA examiner found that the Veteran had bowel incontinence secondary to sphincter disturbance as a result of the Veteran's multiple sclerosis and characterized his abdominal distress as more or less constant. VA treatment records reflect that the Veteran complained of constipation and fecal incontinence and abdominal distress. As such, the Board finds that the Veteran has met the rating criteria for a 30 percent disability evaluation for his IBS for the entire rating period on appeal (since October 11, 2011). See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has considered other applicable rating criteria. See 38 C.F.R. § 4.114 (which stipulates that ratings under Diagnostic Code 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other). After a complete and thorough review of the record, the Board finds that the Veteran is not entitled to a higher disability evaluation under another Diagnostic Code. In particular, the medical evidence of record indicates that the Veteran does not have any complaints or manifestations consistent with liver disease due to his IBS; the Veteran's VA examination reports and treatment records indicate that he does not experience weight loss, hepatomegaly, or anemia due to his IBS. There were also no incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. VA treatment records do not show that the Veteran was treated by a physician for signs and symptoms severe enough to require bedrest. More significantly, the Veteran has not specifically identified any liver symptoms which would merit a schedular rating in excess of 30 percent. In addition, the Veteran does not have severe ulcerative colitis with malnutrition, resection or fistula of the intestines, stricture of the rectum and anus, or prolapsed rectum. As such, he is not entitled to an increased disability evaluation under any other potentially applicable Diagnostic Codes. In light of the evidence, the Board grants a disability rating of 30 percent, but no higher, for the Veteran's service-connected irritable bowel syndrome with constipation and occasional fecal incontinence for the entire rating period on appeal (since October 11, 2011). 3. Entitlement to an increased disability evaluation for bladder sphincter impairment, rated as 40 percent disabling for the rating period prior to September 6, 2018. 4. Entitlement to an increased disability evaluation for bladder sphincter impairment, rated as 60 percent disabling for the rating period since September 6, 2018. The Veteran is currently in receipt of a 40 percent disability rating for his bladder sphincter impairment for the rating period prior to September 6, 2018 and a 60 percent thereafter. His bladder sphincter impairment is rated pursuant to Diagnostic Code 7542, for neurogenic bladder. See 38 C.F.R. § 4.20, authorizing the rating of a condition according to the requirements of an analogous condition. Section 4.115b, Diagnostic Code 7542 states that neurogenic bladder is to be rated as voiding dysfunction. 38 C.F.R. § 4.115b. Section 4.115a states that voiding dysfunction is rated as urine leakage, urinary frequency, or obstructed voiding. A 40 percent disability rating is assigned for urinary frequency with daytime voiding intervals of less than one hour or awakening to void five or more times per night or continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent disability rating is assigned for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. See 38 C.F.R. § 4.115a. No higher disability rating is provided under this Code. After a review of all the evidence, the Board finds that the Veteran's service-connected bladder sphincter impairment more nearly approximates the criteria for the currently assigned 60 percent disability evaluation for the entire rating period on appeal (since October 11, 2011). The Board finds that the Veteran's symptoms of voiding dysfunction have been relatively consistent, and that the 60 percent evaluation takes into account the Veteran's bladder sphincter impairment for the entire rating period. Throughout the rating period, the Veteran's bladder sphincter impairment was characterized by urinary incontinence and urinary frequency. At the May 2012 VA examination, the Veteran reported that his urinary leakage requires absorbent material which must be changed a minimum of 2 to 4 times per day. The Veteran also reported that his urinary frequency was characterized by nighttime voiding five or more times per night and daytime voiding intervals of one to two hours. The November 2011 and May 2012 VA multiple sclerosis examination reports reflect complaints of frequency, urgency, dribbling, and nocturia. The Board acknowledges that the August 2016 VA examination report reflects that the Veteran does not have continual urine leakage and that his absorbent material needed to be changed twice a day and that there is no evidence of urinary tract or kidney infections. However, the September 2018 VA examination report indicates that the Veteran experiences urinary leakage requiring the use of absorbent materials which must be changed more than 4 times per day; the VA examination report noted that VA treatment records show that the Veteran changed his absorbent materials 8 9 times per day. VA treatment records also reflect that the Veteran is on medication for control of his urinary frequency and leakage. The Board acknowledges that higher ratings of 80 percent and 100 percent are available for renal dysfunction. Nevertheless, his VA treatment records and examination reports do not reflect that the Veteran experiences renal dysfunction. Therefore, the Board grants a disability rating of 60 percent, but no higher, for the Veteran's service-connected bladder sphincter impairment for the entire rating period on appeal (since October 11, 2011). 5. Entitlement to an increased disability evaluation for depression, rated as 50 percent disabling for the rating period prior to August 28, 2018. 6. Entitlement to an increased disability evaluation for depression, rated as 100 percent disabling for the rating period since August 28, 2018. The Veteran's depression is evaluated as 50 percent disabling for the rating period from October 11, 2011 to August 28, 2018 and a 100 percent disabling for the rating period since August 28, 2018 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent disability rating requires 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-term 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; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9432. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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 work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided 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. 38 C.F.R. §§ 4.125-4.130. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. See VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 11718. After a review of all the evidence, the Board finds that the Veteran's service-connected depression more nearly approximates the criteria for a 100 percent disability evaluation for the entire rating period on appeal (since October 11, 2011). The Board finds that the Veteran's psychiatric symptoms have been relatively consistent, and that the 100 percent evaluation takes into account the Veteran's level of social and occupational impairment. Throughout the rating period on appeal, the Veteran's depression has been characterized by occupational and social impairment with deficiencies in most areas, including work, thinking, and mood due to symptoms such as depression, irritability, disturbances of motivation and mood, and sleep impairment, as demonstrated by the findings at the May 2012 and August 2018 VA examinations, as well his available VA treatment records and December 2016 VA neuropsychological evaluation. The Veteran has complained of sleep impairment, difficulty concentrating, irritability, disturbances of motivation and mood, memory loss, and depression at his VA examinations and in seeking treatment at VA. He also reported experiencing suicidal ideation, decreased interest, difficulty establishing and maintaining social relationships, and difficulty adapting stressful circumstances. VA treatment records also reflect that the Veteran is unable to do any activities of daily living due to his physical and mental disabilities. A 100 percent disability evaluation accounts for the Veteran's social and occupational impairment as caused by these symptoms. For these reasons, the Board finds that the evidence supports a finding of a 100 percent evaluation for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. The Board observes that the Veteran also requested an evaluation in excess of 100 percent for depression. As previously discussed, the Veteran, as a result of this decision, is rated as 100 percent disabling for the entire rating period on appeal, since October 11, 2011. The Veteran's service-connected depression has been assigned the maximum schedular rating available under 38 C.F.R. § 4.130, Diagnostic Code 9434. As previously discussed, Diagnostic Code 9434 provides that a 100 percent disability rating shall be assigned for is provided 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. 38 C.F.R. §§ 4.125-4.130. The award of a 100 percent schedular disability rating essentially renders moot a claim for an increased disability rating, as benefit sought on appeal has already been granted. Additionally, the record does not present such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321 (2020). In this regard, the Board notes that the Veteran is in receipt of special monthly compensation on account of his service-connected disabilities; the Veteran receives SMC on the basis of aid and attendance. Consequently, referral for a higher rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Accordingly, the Veteran's claim is dismissed for lack of legal merit or legal entitlement. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise the effective date is the date of claim. After March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In seeking the assignment of an effective date prior to August 28, 2018, for the award of SMC on the basis of aid and attendance, at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, the Veteran argues that the award should be retroactive; however, the Veteran did not specify a retroactive effective date to which he felt entitled. 7. Entitlement to an effective date prior to August 28, 2018 for the grant of a special monthly compensation (SMC) on the basis of aid and attendance at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent. 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. As it considers the interactive effects of multiple disabilities, a determination of the correct SMC award level requires layering of different entitlements. Basic levels of SMC are listed at 38 U.S.C. § 1114(k), with additional levels of SMC provided in 38 U.S.C. § 1114(l) through (t). Only the additional levels pertinent to the Veteran's claim are discussed herein. Under 38 U.S.C. § 1114(l), special monthly compensation is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The SMC rate payable under 38 U.S.C. § 1114(m) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes rendering such Veteran so significantly disabled as to be in need of regular aid and attendance. 38 C.F.R. § 3.350(c). The SMC rate payable under 38 U.S.C. § 1114(n) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place, has suffered the anatomical loss of both legs with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of one arm and one leg with factors that prevent the use of prosthetic appliances, or has suffered the anatomical loss of both eyes, or has suffered blindness without light perception in both eyes. 38 C.F.R. § 3.350(d). The SMC rate payable under 38 U.S.C. § 1114(o) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both arms so near the shoulder as to prevent use of a prosthetic appliance or conditions entitling to two or more of the rates (no condition being considered twice) provided one of more of subsections (l) through (n), discussed above. Higher rates of SMC may also be paid pursuant to 38 U.S.C. § 1114(p), which allows for the assignment of either an intermediate rate or the next higher rate of SMC, even when a Veteran does not otherwise meet the criteria for that next higher rate. An intermediate rate is, essentially, "a half-step" increase in the level of SMC compensation being paid. The maximum allowable rate under subsection (p) is equivalent to the rate assigned under 38 U.S.C. § 1114(o). 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). An intermediate rate or the next higher rate of SMC may be assigned when certain conditions are met. 38 C.F.R. § 3.350(f). When a Veteran is in receipt of one of the rates payable under 38 U.S.C. § 1114(l) through (n) and has an additional disability ratable at 50 percent or more, the next higher intermediate rate should be assigned. 38 C.F.R. § 3.350(f)(3). The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from those disabilities establishing entitlement to the SMC rating under 38 U.S.C. § 1114 (l) through (n). Id. Similarly, when a Veteran is in receipt of one of the rates payable under 38 U.S.C. § 1114 (l) through (n) and has an additional disability independently rated at 100 percent, the Veteran should be assigned the next higher statutory rate under 38 U.S.C. § 1114 or, if already entitled to an intermediate rate, the next higher intermediate rate. 38 C.F.R. § 3.350 (f)(4). Under no circumstances may a rate in excess of that allowable under 38 U.S.C. § 1114 (o) be assigned. Id. SMC under subsection (r) provides a higher level of compensation if the Veteran is eligible for compensation under the maximum rate allowable under subsection (p) or subsection (o) and is in need of regular aid and attendance or a higher level of care. 38 C.F.R. § 3.350(h). Alternatively, a higher level of SMC under subsection (r) may also be paid if a Veteran is receiving compensation at the intermediate rate between subsections (n) and (o) and at the rate under subsection (k), and the Veteran requires a higher level of care which is considered to be from a licensed health care professional. 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h)(2), 3.352(b)(3). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will considered in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. All of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) do not have to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. The evidence should establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). Determinations that the veteran is so helpless as to need regular aid and attendance must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. 38 C.F.R. § 3.352(a). The Veteran contended that he was entitled to special monthly compensation based on need for aid and attendance, at a higher rate, as he needed assistance with activities of daily living and could not leave his home unattended. In this case, prior to August 28, 2018, the Veteran was in receipt of SMC under 38 U.S.C. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(3) at the rate intermediate between subsection (l) and subsection (m) on account of loss of use of both feet due to multiple sclerosis with additional disabilities of bladder sphincter impairment, bowel impairment with constipation and occasional fecal incontinence, depression, optic neuritis secondary to multiple sclerosis, post-operative meniscectomy of the left knee with minimal valgus, sensory abnormality of the left upper extremity, and sensory abnormality of the right upper extremity independently ratable at 50 percent or more; the effective date of the award of SMC was November 24, 2004. Since August 28, 2018, the Veteran is in receipt of SMC at the rate provided in 38 U.S.C. § 1114(m), pursuant to 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4). Specifically, the current step was awarded based on entitlement to the rate equal to subsection (l) with additional disability, namely, service-connected depression independently ratable at 100 percent; as noted, the effective date of this award was August 28, 2018, the effective date of the award of a 100 percent disability evaluation for depression. Herein, the Veteran is being awarded a 100 percent disability evaluation for his service-connected depression for the entire rating period on appeal, since October 11, 2011. The Board notes that, during the course of his appeal for a higher rate of SMC on the basis of aid and attendance, at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, the Veteran consistently asserted that he is so helpless as to need regular aid and attendance due to his service-connected disabilities, particularly his weakness of the upper and lower extremities due to multiple sclerosis and his depression. As discussed above, the Veteran has been granted an increased, 100 percent disability evaluation for his service-connected depression, effective October 11, 2011. Thus, he meets the criteria for a higher rate of SMC based on aid and attendance, at the rate equal to subsection (m) on account of entitlement to the rate equal to subsection (l) with additional disability independently ratable at 100 percent, effective October 11, 2011. The effective date for a higher rate of SMC is either the date entitlement arose or the date of receipt of claim, whichever is later. Because the Veteran is awarded a 100 percent disability evaluation for depression effective October 11, 2001, this is the date entitlement arose. With regard to the date the claim was received, the Board acknowledges that the Veteran, through his representative, filed an informal claim of entitlement to higher rate of SMC, which was received by VA on August 19, 2011; there was no communication or submission of evidence from the Veteran evincing intent to apply for SMC prior to August 19, 2011. As the Veteran's entitlement to a higher rate of SMC based on aid and attendance is predicated upon the grant of a 100 percent disability rating for depression, effective October 11, 2011, the date entitlement arose is later than the date of receipt of claim. Therefore, under the laws and regulations pertaining to effective dates, October 11, 2011 is the appropriate effective date for the grant of entitlement to SMC at the rate equal to subsection (m), pursuant to 38 U.S.C. § 1114(p) and 38 C.F.R. § 3.350(f)(4). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.