Citation Nr: 21067714 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-32 057 DATE: November 5, 2021 ORDER A rating in excess of 20 percent for lumbar degenerative disc disease is denied. A total disability rating based on individual unemployability (TDIU) prior to December 18, 2014, is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. Throughout the appeal period, the most probative evidence indicates the Veteran's service-connected lumbar degenerative disc disease has been manifested by, at worst, forward flexion to 45 degrees, with no additional limitation of motion during flare-ups, no evidence of ankylosis, no incapacitating episodes of intervertebral disc syndrome (IVDS) requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities other than his separately evaluated bilateral lower extremity radiculopathy beginning September 15, 2020. 2. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience prior to December 18, 2014. 3. The Veteran is not permanently bedridden or in need of regular aid and attendance as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 2. Prior to December 18, 2014, the criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 3. The criteria for establishing entitlement to SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially testified at a hearing before a Veterans Law Judge who is no longer with the Board in November 2011. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In January 2019, the Board denied the Veteran's claim for a rating in excess of 20 percent for lumbar degenerative disc disease, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board's January 2019 decision and remanding the claims action consistent with the terms of the Joint Motion In April 2020 and April 2021, the Board remanded all of the claims for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes in an October 2020 rating decision, separate 10 percent ratings were granted for left and right lower extremity radiculopathy, effective September 15, 2020. As the Veteran has not appealed those ratings, they are not presently before the Board. However, the Board will address entitlement to a separate rating for an associated neurological disorder prior to the award of separate ratings for bilateral lower extremity radiculopathy as part of the Veteran's claim for an increased rating for his low back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (General Rating Formula), Note (1). Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). 1. Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease Throughout the period on appeal, the Veteran's service-connected lumbar degenerative disc disease has been assigned a 20 percent rating, with a temporary 100 percent rating assigned for convalescence from June 10, 2009 to September 30, 2009. Under the Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastro-intestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, intervertebral disc syndrome can be rated based on incapacitating episodes under the Formula for Rating IVDS (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). Pursuant to the IVDS Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted at any time during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of back pain and stiffness, which limit his ability to lift and stand and walk for prolonged periods of time. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Private treatment records show that the Veteran's thoracolumbar spine exhibited normal range of motion in February 2009, July 2009, September 2009, and December 2012, and 80 degrees of flexion in January 2013 with no pain or limiting factors. Range of motion testing performed during VA examinations revealed forward flexion to 45 degrees in May 2010 and 60 degrees in August 2015, with no additional limitation due to pain, weakness, fatigability, incoordination, or after repetition. Additionally, there was no evidence of ankylosis. Thereafter, a September 2015 VA treatment record shows that the thoracolumbar spine exhibited full range of flexion. In May 2021, a VA examiner reviewed the evidence of record, including the May 2010 and August 2015 VA examinations reports, and opined that the Veteran's thoracolumbar spine would exhibit no additional limitation of motion during flare-ups or with repeated use over time. In support of this, the examiner explained that the Veteran described his flare-ups as increased pain with standing, walking, and lifting, but he did not describe additional limitation of motion, and his back pain did not prevent him from biking long distances. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted at any point during the period under review. The Board has reviewed and considered two disability benefit questionnaires (DBQs) completed by private treatment providers in January 2016 and July 2016, which indicate that the Veteran could not walk; he required the use of a wheelchair; and range of motion testing could not be conducted. However, the Board assigns no probative value to the DBQs, as they are not supported by the evidence of record. For example, a September 2015 VA treatment record shows that the Veteran only reported using his wheelchair for community activities to prevent back pain. It was also noted that the Veteran rode his bike up to 100 miles a week. An August 2016 VA treatment record shows that the Veteran reported using a wheelchair as a means of controlling his back pain; however, it was noted that he was able to walk and rode his bike for exercise. In June 2016, it was noted that the Veteran ambulated independently. In February 2017, a treatment provider noted that the Veteran demonstrated his ability to transfer to the floor and back to standing without difficulty in order to look for the serial number on his wheelchair. In August 2017, it was noted that the Veteran was ambulatory, but chose to use his wheelchair for most outings to control his back pain. The Veteran's treatment provider noted that the Veteran biked several miles a day, was able to heel-walk and toe-walk, and ambulated with a normal gait without the use of any assistive devices. In May 2020, the Veteran reported biking 30 to 50 miles at a time and told a treatment provider that he was better off without using a wheelchair, but noted that it was there when he had to use it. A September 2020 treatment record indicates that the Veteran arrived at an appointment walking. The Board finds the contemporaneous medical evidence and statements made for purposes of seeking treatment to be more credible and persuasive than statements made to medical providers for purposes of completing DBQs in support of a claim for compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Moreover, in the September 2017, April 2020, and April 2021 remands, the Board specifically asked the Veteran to submit medical records from the private treatment providers who completed the 2016 DBQs which would support the information contained in the DBQs; however, the Veteran has not submitted any such records of treatment. The Board also notes that the Veteran was provided additional VA examinations in December 2017 and September 2020, during which he reported being unable to stand up out of his wheelchair to perform range of motion testing. However, as found above, the Veteran's assertions that he was unable to stand to perform range of motion testing are not consistent with the probative evidence of record. The Board finds the contemporaneous medical evidence and statements made for purposes of seeking treatment to be more credible and persuasive than statements made to the VA examiners for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula. In order for a higher rating to be warranted under the IVDS formula, the evidence of record must demonstrate incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. During the May 2010 VA examination, the Veteran reported incapacitating episodes characterized by lying down for 30 to 60 minutes a day. During the November 2011 Board hearing, the Veteran testified that he was incapacitated or confined to his bed for total of about eight weeks over the past year. When asked if a doctor ever told him he needed to stay in bed, he answered affirmatively. However, he later stated that he did not need a doctor to tell him that he was in pain and needed to lie down. Similarly, the 2016 DBQs indicate that the Veteran had between two and six weeks of incapacitating episodes during the past 12 months requiring prescribed bedrest and treatment by a physician. However, a review of the Veteran's treatment records reveals no evidence of incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. As noted above, the Veteran did not submit records from the treatment providers who completed the 2016 DBQs despite multiple requests for such records. Moreover, in an October 2017 written statement, the Veteran's representative indicated that the Veteran did not have an order from a doctor for bedrest, but that he lies down as needed when his back pain dictates. As the probative evidence of record does not show incapacitating episodes requiring prescribed bedrest and treatment by a physician, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board has also considered whether a separate rating is warranted for any associated neurological disorder. During the May 2010 VA examination, the Veteran reported subjective intermittent sciatica, with pain radiating down the leg, occasional tingling in the toes, and left leg and foot weakness. Additionally, the July 2016 DBQ indicates that the Veteran had severe bilateral lower extremity peripheral neuropathy and frequent diarrhea and decreased urine stream, which were neurologic abnormalities associated with the Veteran's low back disability. However, the Veteran's assertions and the July 2016 DBQ are not consistent with the medical evidence of record. Private treatment records dated February 2009 through December 2012 show that the Veteran denied any radicular symptoms, numbness, weakness, or bladder/bowel changes, and lower extremity sensory examinations, muscle strength, and reflexes were normal. Likewise, a sensory examination performed during the May 2010 VA examination was normal; there was no evidence of numbness, dysesthesias, or paresthesias; and both lower extremities exhibited full muscle strength. In January 2013 and August 2015, sensory examinations, lower extremity muscle strength, and reflexes were normal, and the August 2015 VA examiner indicated that there were no signs or symptoms of radiculopathy or any other neurologic abnormalities. An August 2017 VA treatment record indicates that the Veteran denied any radiation into his legs, lower extremity weakness, unsteady gait, falls, bowel or bladder incontinence, weakness, or saddle numbness. Sensation, motor strength, and deep tendon reflexes were normal in both lower extremities. During the December 2017 VA examination, lower extremity muscle strength was normal, and the examiner indicated that there were no signs or symptoms of radiculopathy or any other neurologic abnormalities. In July 2018, a neurological evaluation revealed grossly intact sensation/motor. The Board finds the statements made for purposes of seeking treatment and objective findings upon neurological testing to be more credible and probative than statements made during a VA examination and for purposes of completing a DBQ in support of a claim for compensation. See Cartright, 2 Vet. App. at 25. As the probative evidence of record shows no objective sensory or motor deficits or any other neurologic abnormalities found on neurological testing, the Board finds that a separate rating for lower extremity radiculopathy is not warranted at any time prior to September 15, 2020, nor is a separate rating warranted for any other associated neurological disability at any time during the period on appeal. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist in some cases when earned annual income exceeds the poverty threshold on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 2. Entitlement to TDIU prior to December 18, 2014 Prior to December 18, 2014, service connection was in effect for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), rated as 50 percent disabling prior to July 18, 2013, and 70 percent thereafter; migraine headaches, rate as 50 percent disabling beginning January 16, 2013; lumbar degenerative disc disease, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; right plantar heel spur, rated as 10 percent disabling; and bilateral hearing loss, subjective dizziness, and a scar, each rated as 0 percent disabling. With the exception of the temporary 100 percent rating assigned for convalescence from June 10, 2009, through September 30, 2009, the Veteran's combined disability rating was 70 percent prior to January 16, 2013; 80 percent from January 16, 2013, through July 17, 2013; and 90 percent beginning July 18, 2013. Accordingly, the schedular criteria for entitlement to TDIU have been met throughout the period under review. Upon review of the record, the Board finds that TDIU is not warranted at any time prior to December 18, 2014. The record shows that the highest level of education attained by the Veteran is an associate's degree in computer science. On the Veteran's October 2013 and December 2014 applications for TDIU, he asserted that he has been too disabled to work since his retirement from the Army in 2002. In a written statement accompanying his December 2014 TDIU application, the Veteran asserted that he was only able to work an occasional odd job after service because he was unable to tolerate other people's ineffectual time management, stupidity, and inability to perform their jobs. He indicated that the only way for him to work was to develop his own family business, where his wife could provide a buffer between him and the general public. He further indicated that his service-connected disabilities dictated his work schedule. During an April 2010 VA mental health examination, the Veteran reported problems with concentration, anger, irritability, social isolation, and difficulty relating to other people. He reported working, but stated that he lost customers during the past year due to his reported inability to comprehend and fix things like he used to without asking for help. During a May 210 VA back examination, the Veteran reported being self-employed in the information technology (IT) industry, working 40 hours a week both at home and on site. During a May 2010 VA TBI examination, the Veteran reported being self-employed full-time in the IT industry ever since his discharge from service. The only time he reportedly lost from work over the past year was during his recovery from lumbar surgery. It was noted that the Veteran's subjective symptoms did not interfere with work, instrumental activities of daily living (IADLs), family or other closer relationships, and he had one or more neurobehavioral effects that frequently interfered with workplace interaction, social interaction, or both, but did not preclude them. In January 2013, the Veteran reported being self-employed. During an August 2013 VA TBI examination, it was noted that the Veteran reported three or more or more subjective symptoms that mildly interfered with work, IADLs, or work, family, or other close relationships. The Veteran reported owning and operating a computer consulting business with his wife. He stated he worked part-time and has been able to sustain functioning for tasks required by adhering to strict procedures and regularly looking things up that he could not remember. He also reported making several mistakes, which required re-working, and stated that he was unable to work on projects when his cluster migraine headaches were most intense. Subsequent treatment records show that after the Veteran began receiving TDIU in December 2014, he continued to report being self-employed and owning his own computer consulting business. The Board has reviewed and considered a July 2013 letter from a private psychologist who evaluated the Veteran in October 2008 and again in May 2013. That letter indicates that a neuropsychological screening administered in May 2013 showed a decline in cognitive and memory functioning. The psychologist also indicated that the Veteran "stated his PTSD and anger management problems have increased and have greatly affected his previous IT Business Support Company and have lost many customers due to [the Veteran's] PTSD and poor treatment of clients. He is unable to return to work and his wife has had to take over." The psychologist concluded that the Veteran "is unemployable." The Board assigns little probative value to the July 2013 private opinion, as it based on the Veteran's description of his IT company as a "previous" business, for which he no longer worked. However, as previously noted, treatment records show that the Veteran reported continuing to work for his computer consulting busines even after he began receiving TDIU. For instance, in January 2015 and April 2015, the Veteran told treatment providers that he worked for his own computer business. In August 2016, he reported owning a computer consulting business with wife. In March 2017, the Veteran reported that he was doing somewhat better in dealing with clients at his business. In April 2017, he described his occupation as "business owner." In June 2017, he reported being self-employed in his family business. The Board finds the statements made for purposes of seeking treatment to be significantly more credible and probative than statements made to a psychologist for purposes of preparing a report in support of his claim for compensation. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); See also Cartright, 2 Vet. App. at 25. To the extent that the Veteran asserts that owning his own IT consulting business does not constitute a substantially gainful occupation, the Board finds that there is no evidence of record to support such an assertion. Notably, in the September 2017, April 2020, and April 2021 remands, the Board specifically asked the Veteran to submit evidence showing his income from his IT business, such as tax returns, and he was advised that his failure to provide the requested information could result in the denial of his claim. See Wood v. Derwinski, 1 Vet. App. 13, 193 (1991). However, the Veteran has not provided the requested information. As the most probative evidence shows that the Veteran has owned his own IT business throughout the period under review, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. SMC at the Aid and Attendance Rate SMC is payable at the aid and attendance rate to a veteran who, as a result of service-connected disability, as suffered the anatomical loss or loss of use of both feet or one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following criteria are used to determine whether a claimant is in need of the regular aid and attendance of another person: the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; frequent need of 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 or herself through the loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or, a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions the veteran is unable to perform must be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need of 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 upon an opinion that the claimant's condition is such as would require him or her to remain in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224-25 (1996). 3. Entitlement to SMC based on the need for Aid and Attendance In the July 2019 Joint Motion, the parties agreed that the Board erred in failing to address entitlement to SMC based on the need for regular aid and attendance due to the Veteran's lumbar spine disability, which had been raised by the record in an August 2017 home care assessment indicating that the Veteran required assistance bathing and used a shower chair and grab bars. Upon review of the record, the Board finds that the criteria for establishing entitlement to SMC based on the need for regular aid and attendance have not been met. As previously noted, VA treatment records throughout the appeal period show that the Veteran routinely biked long distances, which reportedly improved his back pain. A July 2011 VA Caregiver Program Assessment and Application indicates that the Veteran's wife asserted that the Veteran was incapable of managing his anger and irritability, and she had to be on hand at all times to intervene. She stated that the Veteran had a driver's license, but claimed that she must assist him with all transportation because he could not safely manage the roads. She also asserted that the Veteran had difficulty with organization, and she managed his medications, made his medical appointments, and managed the household. She indicated that although the Veteran was working, she assisted him, as he was not able to interact with customers. The Veteran's wife was approved for a tier two comprehensive caregiver stipend. An August 2016 VA caregiver program note indicates that the Veteran was independent in feeding, ambulation, transferring, and toileting, but reportedly needed assistance with bathing/personal hygiene and dressing, and it was noted that he used a shower chair and grab bars. He also reported needing assistance with preparing meals, housework, shopping, and transportation. An August 2017 VA treatment record shows that the Veteran was independent in all ADLs, and he denied any falls or unsteady gait. At that time, he requested a wheelchair that would allow him to work in the yard and go off road on various terrains. It was also noted that he continued to bike several miles a day. An August 2017 VA caregiver note shows that the Veteran was independent in feeding, ambulation, transferring, and toileting, but reportedly needed assistance with bathing/personal hygiene and dressing, and it was noted that he used a shower chair and grab bars. He also reported needing assistance with preparing meals, housework, shopping, and transportation. An August 2018 VA caregiver note shows that the Veteran was independent in feeding, ambulation, transferring, toileting, dressing, bathing/personal hygiene, and managing his finances and medications. He reported falling frequently, needing assistance with using the telephone, and being totally dependent in terms of housework, shopping, and transportation. However, the Veteran later reported driving at night and engaging in activities, such as going to the shooting range. With respect to using the telephone, the treatment provider noted that after some exploration, the Veteran admitted to answering the phone when he knew it was a family member, but stated that his wife otherwise answered the phone because it was "nicer that way." When the treatment provider asked the Veteran's wife about her own depression, it was noted that the Veteran did all of the talking. The treatment provider noted that "[t]here seemed to be inconsistency in the Veteran's ability to meet his needs after he learned that he would be reassessed." After learning that he would be reassessed, the Veteran reported that he needed a caregiver due to his back and memory and communication problems caused by his PTSD and TBI. The treatment provider noted that there was no evidence of memory or communication problems during the assessment, and the Veteran was not engaged in mental health treatment or taking any psychotropic medications. The Veteran acknowledged being independent in preparing his own meals if he microwaved his food. He also reported that his wife did all of the driving; however, it was noted that after some exploration, the Veteran reported driving recently when they were in Iowa, but stated that he drove at night when there were fewer people on the road. A September 2019 VA caregiver note shows that the Veteran was independent in all ADLs and IADLs, including feeding, ambulation, transferring, bathing/personal hygiene, dressing, toileting, preparing meals, housework, shopping, transportation, using the telephone, and managing medications and finances. A March 2020 VA treatment record notes that the Veteran rode his bike, was a precision shooter, and traveled in his recreational vehicle (RV). The Veteran reported doing things on his own because his wife did not want to do anything. An April 2020 VA treatment record shows that the Veteran reported staying home more due to his wife's medical conditions. However, he also reported going to baseball games, precision shooting, and biking. A September 2020 VA treatment record shows that the Veteran reported traveling in an RV for the past three months, noting that he did the majority of the driving. He also reported being independent in all ADLs and IADLs, except he needed assistance washing his back. In summary, the Veteran's service-connected disabilities did not result in the anatomical loss or loss of use of both feet or one hand and one foot, or blindness in both eyes with visual acuity of 5/200 or less, and he is not permanently bedridden. Moreover, the evidence of record does not show that the Veteran was unable to feed himself, keep himself ordinarily clean and presentable, attend to the wants of nature, or protect himself from the hazards or dangers incident to his daily environment. Although the Veteran occasionally reported needing assistance with washing his back and dressing during annual VA caregiver assessments, other times it was noted that he was independent in all ADLs and IADLs. Moreover, the Veteran reported being a busines owner; taking trips in his RV, during which he did most of the driving; and engaging in activities alone, such as precision shooting, taking long bike rides, and going to baseball games, which are not consistent with someone who is so helpless as to need of regular aid and attendance of another person. Accordingly, the Board finds that the criteria for establishing entitlement to SMC at the aid and attendance rate have not been met. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350(b), 3.352. In reaching the above conclusions, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.