Citation Nr: 21065765 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-51 572 DATE: October 27, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for degenerative joint disease (DJD) of the thoracic spine, with intravertebral disc syndrome (IVDS) of the thoracolumbar spine and peripheral neuropathy of the bilateral lower extremities (thoracolumbar spine disability), prior to January 8, 2021 (not including a period of temporary total evaluation) is granted. Entitlement to a disability rating in excess of 40 percent for thoracolumbar spine disability since January 8, 2021 is denied. Entitlement to special monthly compensation (SMC) based on permanent need for regular aid and attendance is granted. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disability has manifested as forward flexion of the thoracolumbar spine 30 degrees or less prior to January 8, 2021 (not including a period of temporary total evaluation). 2. Since January 8, 2021, the Veteran's thoracolumbar spine disability has not manifested as unfavorable ankylosis of the entire thoracolumbar spine. 3. The probative evidence of record demonstrates the Veteran is in need of regular aid and attendance for his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 40 percent, but no higher, for thoracolumbar spine disability prior to January 8, 2021 (not including a period of temporary total evaluation) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5243 (2021). 2. The criteria for entitlement to a disability rating in excess of 40 percent for thoracolumbar spine disability since January 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5243 (2021). 3. The criteria for entitlement to SMC based on permanent need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army and the United States Air Force on active duty from July 1952 to May 1954 and from August 1955 to October 1973. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board remanded the claims for further development. In a January 2020 rating decision, the RO extended the temporary total rating for the Veteran's thoracolumbar spine disability through December 31, 2015 and SMC based on housebound criteria was extended through January 1, 2016. The above issues were again before the Board in August 2020. The Board remanded to provide a VA examination to address the Veteran's claimed worsening symptoms. Increased Ratings VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, 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). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration 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. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. § 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to a disability rating of 40 percent, but no higher, for thoracolumbar spine disability prior to January 8, 2021 (not including a period of temporary total evaluation) 2. Entitlement to a disability rating in excess of 40 percent for thoracolumbar spine disability since January 8, 2021 The Veteran contends that his thoracolumbar spine disability warrants an increased evaluation. Additionally, the Veteran contends that his symptoms of his thoracolumbar spine disability have worsened. As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria from that date. VA will apply the rating criteria that is more favorable to the Veteran from the effective date of the change. Here, the Veteran's thoracolumbar spine condition is rated under 38 C.F.R. § 4.71a, DC 5243, for IVDS. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). While the diagnostic criteria dealing with degenerative arthritis of the spine and IVDS were updated with the new regulations, the rating criteria of the General Formula and IVDS Formula did not change under the new regulations. See 38 C.F.R. § 4.71a, DC 5235-43 (2021). As such, the rating criteria for the Veteran's lumbar spine condition is unchanged and the Board will proceed with adjudication. Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined ROM of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Additionally, under the IVDS Formula, a 10 percent rating is awarded for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent rating is awarded for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent rating is awarded for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. As the procedural course of the Veteran's claim is at issue in this appeal, a brief history is provided, including review of the Board's findings in its August 2020 decision. The Board granted separate disability ratings for the Veteran's neuropathy of the sciatic and femoral nerves, associated with the Veteran's thoracolumbar back disorder. The Board addressed the separate ratings for the Veteran's incomplete paralysis of the lower extremities and the rating assigned for the Veteran's back disability rated under DC 5243, based on incapacitating episodes related to IVDS. The Board determined that evaluating a veteran under IVDS along with the assignment of separate ratings for radiculopathy would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. As the Board has a duty to award the highest rating possible, the Board concluded that the highest total rating for the Veteran resulted from continuing the Veteran's prior 20 percent rating for his thoracolumbar spine disability, under the General Formula, and assigning separate 40 and 30 percent ratings for bilateral lower extremity radiculopathy. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (explaining that the Secretary is required to maximize benefits). In the August 2020 decision, the Board remanded the Veteran's claims, related to the low back disability under the General Formula, for further development. Thus, in keeping with the Board's August 2020 prior findings, the Board will evaluate the Veteran's thoracolumbar spine disability under the symptoms and limitations of motion criteria of the General Formula. Here, the Board finds the evidence of record demonstrates the Veteran's thoracolumbar spine disability most closely approximates 40 percent disabling under the General Formula, for the entire period on appeal not including the period of total disability due to convalescence under 38 C.F.R. § 4.30. 38 C.F.R. § 4.71a, DC 5243. In August 2015, the Veteran underwent a VA examination to address his thoracolumbar spine disability. The VA examiner provided the diagnosis of DJD of the thoracic spine with IVDS of the thoracolumbar spine and peripheral neuropathy of the lower extremities. Upon examination, the Veteran's initial ROM was noted with forward flexion to 60 degrees with objective evidence of painful motion at zero degrees; extension to 20 degrees, with objective evidence of painful motion at zero degrees; bilateral flexion to 20 degrees, with objective evidence of painful motion at zero degrees; and bilateral rotation to 20 degrees, with objective evidence of painful motion at zero degrees. The VA examination measured the Veteran's ROM after repetitive use testing: with forward flexion to 60 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 20 degrees. The examiner reported the Veteran did not have additional limitation in ROM following repetitive use testing. The examiner noted the Veteran had functional loss of the thoracolumbar spine, listing contributing factors as less movement than normal and weakened movement. The examiner found evidence of localized tenderness on palpation of the thoracolumbar spine. The examination noted the Veteran presented guarding or muscle spasm of the thoracolumbar spine resulting in abnormal gait and spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The VA examiner noted the Veteran regularly used a cane and back brace for his back condition. The VA examiner remarked that there are contributing factors of pain, weakness, fatigability and/or incoordination, as well as additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The examiner estimated the degree of ROM loss during pain on use or flare-ups was approximately loss of 5 degrees for each ROM. The record contains the Veteran's private physical examination from August 2015. The Veteran complained of back pain rated as 8 out of 10. The private physician noted abnormal limited ROM with severe pain. The physician reported the Veteran's ROM as flexion to 25 degrees and extension to 15 degrees. The Veteran's private medical treatment records reveal the Veteran's underwent a laminectomy and spinal fusion surgery in September 2015. The RO provided the Veteran a VA examination in June 2018. The Veteran noted his history of several back surgeries. The Veteran did not report pain on the day of the examination, and noted no flare-ups. The VA examination measured the Veteran's initial ROM: with forward flexion to 70 degrees, extension to 30 degrees, bilateral flexion to 30 degrees, and bilateral rotation to 30 degrees. The examiner noted the Veteran's ROM itself did not contribute to functional loss. The examiner noted no evidence of pain with weight bearing or localized tenderness or pain on palpation. The VA examiner noted the Veteran was able to perform repetitive use testing with at least three repetitions. The examination reported that there was no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. However, the examiner stated there was no additional ROM loss due to pain, weakness, fatigability, or incoordination that significantly limited functional ability when the joint was used repeatedly during the examination. The examiner noted the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The examination did not report findings of muscle atrophy or ankylosis of the spine. The VA examiner noted the Veteran regularly used a cane for support and fall prevention. The Veteran underwent a VA thoracolumbar spine examination in January 2021. The Veteran complained of worsening back pain. The Veteran noted constant back pain rated 4 to 5 out of 10. The Veteran described the pain as dull and achy and noted the pain increased to 6 to 8 out of 10 with cold, cloudy weather. Additionally, the Veteran noted any form of movement will aggravate the pain. The Veteran did not report flare-ups. The VA examination measured the Veteran's initial ROM: with forward flexion to 30 degrees, extension to 10 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 10 degrees. The examiner noted the Veteran's ROM itself did not contribute to functional loss. The examiner noted the Veteran demonstrated pain on examination in all areas of testing, which caused functional loss. The examiner noted pain with weight bearing and sharp pain on palpation of the middle lower back. The VA examiner noted the Veteran was unable to perform repetitive-use testing with at least three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner reported that pain, fatigue, weakness, lack of endurance, and coordination significantly limited the Veteran's functional ability with repeated use over a period of time. The VA examiner noted no change in terms of ROM after repeated use over time. The VA examiner reported the Veteran demonstrated guarding and muscle spasm that did not result in abnormal gait or spinal contour. The examination noted the Veteran did not display muscle atrophy or ankylosis of the spine. The examiner reported the Veteran required constant use of a walker. The Veteran submitted medical opinions from his private treating physician addressing the severity of the Veteran's thoracolumbar spine condition. In December 2015, the Veteran's private neurologist noted the Veteran was totally disabled. In a July 2016 letter, the Veteran's private neurologist noted the Veteran was at risk of becoming paraplegic. The private neurologist noted that while the Veteran had avoided paraplegia following surgery, the Veteran could not walk without assistance. The treating neurologist noted the Veteran's back muscles were abnormally weak from surgery and injury; and the patient could not completely straighten due to spine stenosis. In addition to the private medical statements, the Veteran submitted lay statements addressing the severity of his back condition. In August 2016 correspondence, the Veteran noted the difficulties he experienced due to his thoracolumbar spine disability. The Veteran noted that his back muscles will not lift his torso. He noted that he could not stoop, squat, or bend his back. Additionally, the Veteran noted that he was unable to sit erect. After a review of the evidence of record, the Board finds that an evaluation of 40 percent disabling for the Veteran's thoracolumbar spine disability is warranted for the pendency of the Veteran's appeal, not including the period of total disability due to convalescence under 38 C.F.R. § 4.30. The Board notes the Veteran's August 2015 private treatment record established the Veteran's service-connected thoracolumbar spine disability manifested in forward flexion of the thoracolumbar spine to 25 degrees. Additionally, the Veteran's January 2021 VA examination recorded the Veteran's forward flexion of the thoracolumbar spine to 30 degrees. Although VA and private treatment records are absent of ROM testing, medical records consistently show the Veteran complained of similar levels of pain, weakness and limitations in movement, throughout the period on appeal. The Board recognizes there was some fluctuation in the nature and severity of the Veteran's symptoms associated with the lower back disability ratings. Notably, the Board acknowledges the VA examinations from August 2015 and July 2018 measured the Veteran's limitation of ROM as greater than 30 degrees. However, overall, the evidence of record demonstrates that the type and extent, frequency and severity of the Veteran's symptoms have been relatively consistent throughout the pendency of the Veteran's appeal. Further, the Board notes the medical and lay evidence of record identifying the Veteran's functional loss due to pain, weakness, excess fatigability, or incoordination, associated with the Veteran's thoracolumbar spine disability, must be considered during those periods which showed the Veteran's thoracolumbar spine ROM did not meet the level of 40 percent disabling. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes the Veteran's private neurologist's statement that the Veteran was unable to straighten his spine. Additionally, the Board identifies the Veteran's lay statements noting the severity of his back weakness and his inability to sit erect, stoop, or bend his back. The Board establishes this as evidence of functional loss equivalent to limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. 38 C.F.R. § 4.71a, DC 5243; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's thoracolumbar spine disability most closely approximates a 40 percent disability rating under the General Formula criteria of 38 C.F.R. § 4.71a, DC 5243. The evidence of record is against a finding of a rating in excess of 40 percent under the General Formula of the Spine, as the record contains no evidence during the appeal period that the Veteran presented symptoms of ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. Although the Veteran complained of the inability to bend his back, and that movement aggravated back pain, the Veteran's thoracolumbar spine was not fixed in one position. The evidence of record is absent of a diagnosis of favorable or unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the evidence demonstrates that throughout the appeal period, the Veteran has been able to move his spine in all directions. As such, the Veteran's thoracolumbar spine is not ankylosed, either favorably or unfavorably. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Additionally, the evidence of record does not show the Veteran's limitation of motion ever reached the level that is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board has considered the evidence of functional impairment found in the record in granting the Veteran a 40 percent rating for the entire appeal period. Thus, consideration under DeLuca has been provided and additional consideration for a rating in excess of 40 percent is not warranted. DeLuca v. Brown, 8 Vet. App. 202 (1995). Regarding neurological dysfunction related to the thoracolumbar spine, as noted above, the Veteran is already in receipt of separate ratings for incomplete paralysis of the left and right lower extremities secondary to his thoracolumbar spine disability, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In sum, resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's thoracolumbar spine disability warrants the evaluation of a 40 percent disability rating, but no higher, for the period on appeal, under DC 5243. 38 C.F.R. §§ 4.3, 4.7, 4.71a. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Entitlement to special monthly compensation (SMC) based on permanent need for regular aid and attendance or housebound status The Veteran contends that his service-connected disabilities have affected his activities of daily living, requiring the need for aid and attendance. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (1) is 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 five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that a Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). In September 2014, the Veteran submitted a private examination for housebound status or permanent need for regular aid attendance. The examination identified the Veteran's arthritis of the spine as a disability that restricted his activities and functions. The examination noted the Veteran always used a cane and had poor endurance. The private examination noted the Veteran needed help with some activities of daily living, including bathing and dressing. The private physician noted the Veteran could not button himself or get his pants on by himself. In January 2021, the Veteran underwent a VA examination to address the Veteran's claim for housebound status or permanent need for regular aid and attendance. The VA examiner noted the Veteran's conditions that restricted his activities and functions as: thoracolumbar spine disability; osteopenia of bilateral shoulders; bilateral knee strain with DJD and osteopenia; bilateral hip synovitis with DJD and osteopenia; and bilateral ankle teno-synovitis with JD and osteopenia. The VA examiner also noted the Veteran's risk of falls related to his unsteady gait and weakness in the lower extremities, making the Veteran susceptible to injuries and fractures. The VA examiner noted the Veteran used a walker for mobilization at all times. The Veteran was noted as a high risk for falls, even when using his walker. The examiner noted the Veteran required mild to moderate assistance in the home dressing and undressing; bathing; grooming; keeping self ordinarily clean and presentable; and toileting. The VA examiner noted that the Veteran bathed in the sink, which was a continued risk of a fall. The examination noted the Veteran's wife was responsible for preparing meals. Further, the VA examiner noted the Veteran was unable to perform independent activities of daily living. The examination noted the Veteran received increased assistance from his spouse. The VA examiner opined that the Veteran was able to perform self-care, ambulate or travel beyond the premises of the home, or if hospitalized, beyond the ward of the clinic area. The Veteran reported that he hardly left the house. He noted attending medical appointments but denied participation in social events. The examination reported the Veteran's wife completed community related tasks for him. The Veteran submitted medical opinions from his private treating physician addressing the severity of his back condition and his requirement for aid and attendance. In February 2016 correspondence, the Veteran's private treating physician noted the Veteran required full assistance to complete activities of daily living. The Veteran's private neurologist opined, in July 2016 correspondence, that the Veteran is in need of attendant care. The Veteran's private neurologist stated that the Veteran cannot go from sitting to a standing position without assistance. In a March 2017 letter, the Veteran's private neurologist noted the Veteran experienced extreme pain getting into and out of bed or a car, taking a bath, and walking. The neurologist noted the Veteran required assistance with all of these activities. The Veteran submitted lay statements from his wife and children from June 2018, noting the Veteran requires full-time attendance. The Veteran's wife reported that the Veteran has fallen repeatedly. Additionally, the Veteran's children reported that the Veteran cannot walk more than 50 feet without experiencing spasms in his legs. The Veteran's children noted that after he attempted to walk, he would be unable to walk again for days. The Veteran's children reported the Veteran was unable to rise from a seated position without the help of two people pulling his arms and supporting him once he stands. Moreover, the Veteran submitted a lay statement in August 2016, noting his service-connected disabilities and the effect on his activities of daily living. The Veteran reported that if he stood for more than 2 or 3 minutes, he experienced weakness and shaking in his legs, then would later collapse. The Veteran noted that he is unable to attend to himself after a bowel movement. The Veteran noted that he was unable to put on his pants or shoes. Finally, the Veteran reported that he was unable to sit erect and is unable to feed himself. Upon review of the entire record, including lay and medical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's combination of physical service-connected disabilities requires care and assistance on a regular basis in order to dress himself, prepare meals, keep himself clean and presentable, and protect him from the hazards or dangers inherent in his daily environment. Accordingly, entitlement to SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board notes the Veteran was granted SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) from August 27, 2015 to December 31, 2015. Further, as SMC based on aid and attendance is a greater benefit than SMC at the housebound rate, the Veteran's claim to entitlement to SMC at the housebound rate is moot. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, Associate 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.