Citation Nr: 21074460 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 10-29 081 DATE: December 15, 2021 ORDER A rating higher than 40 percent for degenerative joint disease of the lumbosacral spine (low back disability) is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance is denied. FINDINGS OF FACT 1. The Veteran's low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or by acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period. 2. The Veteran is not in need of regular aid and attendance due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for the low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for SMC based on the need for aid and attendance have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to March 1974, and from April 1975 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is of record. In a July 2020 decision, the Board, in pertinent part, granted a 40 percent rating, but no higher, for the Veteran's low back disability from April 28, 2008 to March 8, 2020, and denied a rating higher than 40 percent since March 9, 2020. In an April 2021 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), and vacated the Board's July 2020 decision to the extent it denied a rating higher than 40 percent for the Veteran's low back disability during the period under appellate review (i.e., from April 28, 2008 forward). The Court remanded the matters for action consistent with the terms of the joint motion. In September 2021, the Board remanded the matters for further development. The Board notes that additional VA treatment records have been associated with the claims file which were not before the agency of original jurisdiction (AOJ) when it issued the October 2021 Supplemental Statement of the Case. In the December 2021 appellate brief, the Veteran, through his representative, waived his right to initial review of this evidence by the AOJ, thereby authorizing the Board to consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c). Increased Ratings VA has adopted a 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 basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). (Continued on next page) Low Back Disability For the following reasons, the Board finds that the criteria for a rating higher than 40 percent for the Veteran's low back have not been met. A. Rating Criteria The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The evaluation of IVDS will be discussed below. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the agency of original jurisdiction for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). These changes will be discussed further below. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise; thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 85 Fed. Reg. 76453. Under the General Rating Formula, evaluations of disabilities of the thoracolumbar spine are assigned as follows: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. 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 there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 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. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. Id. The General Rating Formula applies with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Id., Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2); Plate V. The normal combined range of motion is 240 degrees. Id. 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; gastrointestinal 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. Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Disabilities of the thoracolumbar and cervical spine segments are evaluated separately, except when there is unfavorable ankylosis of both segments, which is rated as a single disability. Id., Note (6). Under DC 5243, IVDS may be evaluated under the General Rating Formula, as set forth above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 10 percent rating is assigned if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned if the total duration is at least six weeks during the past 12 months. Id. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. Id., Note (1). Effective February 7, 2021, the revised schedule provides that the criteria for rating IVDS under DC 5243 apply only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). Diagnostic Code 5242, which pertains to degenerative arthritis and degenerative disc disease other than IVDS, is to be assigned for all other disc diagnoses. No changes were made to the criteria for rating IVDS. A "non-substantive edit[]" was also made to DC 5242 clarifying that it applies to degenerative arthritis and degenerative disc disease other than IVDS. Id. at 76459, 76462. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). B. Analysis As the Veteran's low back disability has been assigned a 40 percent rating, a higher rating under the General Rating Formula may only be assigned if the evidence shows unfavorable ankylosis of the thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5242. The record, including the VA examination reports and treatment records, shows that he has not been found to have ankylosis of the thoracolumbar spine. The Board notes that the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Id. at 10. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. Accordingly, the assignment of the maximum rating based on limitation in range of motion does not preclude consideration of functional loss under sections 4.40 and 4.45 of the regulations where a diagnostic code provides for a higher rating based on ankylosis. Id. Here, the record shows that the Veteran has not had the functional equivalent of unfavorable ankylosis, as defined in Note (5) to the General Rating Formula, since he has not had any of the manifestations by which unfavorable ankylosis is defined, including during any flare-ups or with repeated use over time. See 38 C.F.R. § 4.71a, DC 5242, Note (5). More specifically, neither the VA examination reports and treatment records, nor the Veteran's statements, show that during flare-ups or with repeated use of the back, his entire thoracolumbar spine is fixed in flexion or extension resulting in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal 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. See id. In sum, when considering functional loss during flare-ups or with repeated use over time due to factors such as pain, weakness, fatigability, incoordination, or lack of endurance, the record shows that the Veteran's low back disability has not been manifested by the functional equivalent of unfavorable ankylosis of the thoracolumbar spine, as defined in the rating criteria. See id.; see also 38 C.F.R. §§ 4.40, 4.45; Chavis , 34 Vet. App. at 11. The Board must disregard the ameliorative effects of medication in evaluating the severity of a disability unless the applicable rating criteria specifically contemplate such effects. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (holding that a higher rating may not be denied on the basis of relief provided by medication when the ameliorative effects are not specifically contemplated by the rating criteria); but see McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016) (holding that the plain language in DC 7101, which applies to hypertension, contemplated the ameliorative effects of blood pressure medication). The General Rating Formula does not contemplate the ameliorative effects of medication. As there is no indication that the Veteran would have unfavorable ankylosis of the thoracolumbar spine but for the ameliorative effects of medication, disregarding those effects does not alter the conclusion that his low back disability has not met the criteria for a rating higher than 40 percent under the General Rating Formula. See Jones, 26 Vet. App. at 61. The record shows that the Veteran's IVDS of the thoracolumbar spine has not been manifested by acute signs and symptoms requiring bedrest prescribed by a physician and treatment by a physician for a total duration of at least six weeks during a 12-month period. Therefore, the criteria for a rating higher than 40 percent under the Formula for Rating IVDS have not been met. 38 C.F.R. § 4.71a, DC 5243. The amendments to DC's 5243 and 5242, which went into effect on February 7, 2021, do not include substantive changes to the rating criteria, as discussed above. See 85 Fed. Reg. 76462. Thus, they do not alter the Board's evaluation of the Veteran's back disability for the period since the effective date of the amendments. Because the preponderance of the evidence is against a higher rating for the Veteran's low back disability, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). Special Monthly Compensation A. Law An increased rate of compensation in the form of special monthly compensation (SMC) is provided at the rates set forth in 38 U.S.C. § 1114 under certain circumstances as specified in that section. SMC at the rate provided under 38 U.S.C. § 1114(l) is payable when a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, is permanently bedridden, or is 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 factors considered in determining the need for aid and attendance include, in pertinent part, the inability to perform such tasks as to dress and undress oneself; inability to keep oneself ordinarily clean and presentable; inability to feed oneself due to loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). A need for aid and attendance will also be found if the claimant is "bedridden," meaning that condition which, through its essential character, actually requires that the claimant remain in bed. Id. Not all of the above disabling conditions need be found to exist in order to grant aid and attendance benefits. Id. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Id. Determinations that the claimant 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 be in bed. Id. They must be based on the actual requirement of personal assistance from others. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). B. Analysis In the JMPR, the parties agreed that the claim for an increased rating for the Veteran's low back disability reasonably raised the issue of entitlement to SMC based on the need for aid and attendance. In that regard, the JMPR notes that the March 2020 VA examination report reflects that the Veteran stated he lives with his granddaughter to keep him from doing things around the house himself, and that she helped him around the house. He also stated that he was unable to perform activities of daily living. The examiner noted that the Veteran could "roll out of bed and go to the bathroom, and not much else." The JMPR also notes that a disability determination by the Social Security Administration (SSA) states that due to his back disability, the Veteran required assistance with cooking and cleaning his house, and that he "could not shower on his own." For the following reasons, the Board finds that the criteria for SMC based on the need for aid and attendance have not been met. In the Veteran's May 2010 application for SSA disability benefits, he answered a number of questions pertaining to his ability to care for himself. In response to the question asking how his disabilities affect his ability to care for his personal needs, he stated that someone else had to do his shopping for him. In that regard, he stated that it used to take him fifteen to twenty minutes to do his grocery shopping, and it now took him over an hour because of limited movement. He also stated that he takes a "bird bath" because he was concerned about falling in the bathtub. His former spouse cooked meals for him and brought them to his house. She and his daughter also cleaned his house. When he left the house he wore a back brace. He needed to use a cane if he walked over thirty feet. He stated he would probably live with a relative who could assist him with daily functions. In response to a question asking him to describe his daily activities, the Veteran wrote that he gets up and dresses, makes a cup of coffee and watches television, goes to the post office, then returns home and feeds the cat, uses his computer or watches television, goes to the store and buys groceries, fixes dinner or goes to a fast food restaurant, watches television or uses his computer, showers, feeds the cat again, and goes to bed. Regarding reminders for personal needs and grooming, the Veteran wrote that due to the possibility of falling in the bathtub, he has a tendency not to shower every day, and needed reminders from his daughter. Regarding preparing meals, the Veteran wrote that he made sandwiches daily, and frozen dinners. He stated he used to be able to cook, but now is more dependent on his daughter and former spouse. Regarding household chores, the Veteran wrote that he cleans his room, does laundry, and small jobs around his house. He stated he needed help cleaning his room and the living room. The Veteran stated he went outside three to five times per day, for thirty minutes at a time. He drove a car. He did grocery shopping twice a week, which took him thirty to sixty minutes each time. In its October 2010 disability determination, SSA found that the Veteran was disabled for SSA purposes effective January 25, 2010, with a primary diagnosis of disorders of the back, and a secondary diagnosis of osteoarthrosis and allied disorders. In the discussion section, it was noted that he reported that someone else has to do his grocery shopping for him, and that he had difficulty performing self-care such as bathing due to back pain. VA treatment records dated in October 2017 and April 2019 note that the Veteran lived alone. VA examination reports dated in August 2013 and April 2019 note the Veteran's limitations with regard to walking, standing, sitting, bending, lifting, and using stairs due to his back disability, but do not speak to the issue of whether he has been able to engage in more basic activities such as dressing, bathing, and feeding himself. The March 2020 VA examination report reflects that the Veteran loses his balance due to his back and needed a cane to maintain balance. His granddaughter lived with him "to keep him from needing to do things himself." The Veteran stated that during flare-ups he does not want to get out of bed and is unable to do activities of daily living. His granddaughter helped him get around. He could "roll out of bed and go to the bathroom, and not much else." These flares occurred about every two weeks, and lasted twenty-four to forty-eight hours. They were often brought on by picking something up. A VA examination to assess the Veteran's ability to care for himself for purposes of determining whether he is in need of regular aid and attendance was performed in October 2021. The report states that his low back pain and radiculopathy made it difficult to walk on his own, and that he needed a cane to ambulate. The examiner found that the Veteran was able to feed himself and prepare his own meals. In this regard, he ate mainly frozen dinners ("TV dinners") and meals he could heat up in the microwave. He used his bed six to seven hours for sleeping. The rest of the day he was not in bed. He did not need assistance with bathing and tending to other hygiene needs. He was able to dress himself. He lived with his dog. He was able to do activities of daily living slowly in the house. He could leave his house as often as he needed to leave. The preponderance of the evidence shows that the Veteran's back disability has not rendered him in need of regular aid and attendance. In his May 2010 application for SSA disability benefits, he stated that someone else had to do his shopping for him and that he takes a "bird bath" because he is concerned about falling in the bathtub. He also stated that his former spouse cooked meals for him and brought them to his house. These statements do not establish a need for aid and attendance. In themselves, they do not indicate that he was unable to feed himself, including due to loss of coordination of the upper extremities or extreme weakness, to keep himself ordinarily clean and presentable on his own, to dress and undress himself, to attend to the wants of nature on his own, or that he needed regular care or assistance to protect himself from the hazards or dangers incident to his daily environment. Moreover, in the same May 2010 application, he wrote that he does in fact go grocery shopping twice per week, that he was able to dress himself, that he does take showers but had a tendency not to shower every day due to concerns about falling and thus needed reminders, that he left the house three to five times per day, that he drove, and that he could prepare simple meals such as sandwiches and frozen dinners, as well as go to fast food restaurants. Those statements show that he did not need someone to go shopping for him or prepare meals for him. The fact that his former spouse brought cooked meals to him does not indicate otherwise. The Board also notes that the regulatory criteria speak in terms of the physical ability to feed oneself, not the ability to prepare meals or go shopping. See 38 C.F.R. § 3.352(a). Be that as it may, his statements show he could do both. To the extent he took a "birth bath" rather than shower, that still shows he was able to maintain ordinary cleanliness on his own. Moreover, in the same application, he stated that he does shower. The fact that he did not do so every day, and needed reminders, does not indicate that he has been unable to keep himself clean and presentable. In addition, the fact that he received assistance with cleaning his home does not indicate that he needed assistance with the more basic types of care contemplated by the regulation, including a need for assistance or care in protecting himself from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). The October 2010 SSA disability determination reiterates some of the Veteran's statements in his May 2010 application, which do not show a need for aid and attendance, as discussed above; it does not reflect independent medical findings regarding those statements, or additional findings pertinent to his ability to care for himself in the ways contemplated by § 3.352(a). The Board observes that the JMPR's assertion that the SSA disability determination states that the Veteran "could not shower on his own" is misleading. He said that he needed reminders to shower, and was concerned about falling during showers, but not that he was unable to shower or bathe on his own. The October 2010 SSA disability determination simply notes that he had difficulty performing self-care such as bathing due to back pain, not that he needed help with bathing or showering. Accordingly, the Veteran's SSA records do not support a finding that he has been in need of regular aid and attendance. The March 2020 VA examination report also does not support a finding that the Veteran is in need of regular aid and attendance. He stated that he lives with his granddaughter to him "to keep him from needing to do things himself," but did not state that he needed her assistance with dressing himself, maintaining ordinary cleanliness, feeding himself, attending to the wants of nature, or protecting himself from the dangers or hazards incident to his daily environment. The Board observes that the October 2017 and April 2019 note that the Veteran lived alone, and the October 2021 VA aid and attendance examination report states he lived with his dog, which suggests he was not living with his granddaughter at that time. Thus, while he may have lived with his granddaughter for a period of time when the March 2020 examination was conducted, the record does not show that he otherwise lived with her or others. The Veteran's statement that during flare-ups he could only "roll out of bed" to go to the bathroom, and "not much else," also does not establish a need for regular aid and attendance. More specifically, he did not state, and the record does not otherwise show, that this was a regular condition, or that he "required personal assistance from others" in terms of caring for basic needs such as feeding himself, dressing, keeping himself clean, etc. See 38 C.F.R. § 3.352(a). Indeed, he stated that he did "not want to get out of bed," but did not indicate, and the record does not suggest, that his condition, "through its essential character," actually required that he remain in bed. See id. Moreover, he stated the flare-ups occurred about every two weeks, and lasted twenty-four to forty-eight hours. While a constant need for aid and attendance need not be shown, the Board finds that that frequency and duration of flare-ups does not establish a need for regular aid and attendance, taking at face value his statements regarding flare-ups. In sum, the March 2020 VA examination report also does not support a finding that the Veteran has been in need of regular aid and attendance, as defined in § 3.352(a). The October 2021 VA aid and attendance examination report is probative, as it reflects findings of a medical professional based on examination of the Veteran and an interview with him, and directly addresses his ability to care for himself in terms of the criteria for establishing a need for regular aid and attendance under 38 C.F.R. § 3.352(a). That report shows that the Veteran has not been in need of regular aid and attendance, as discussed in detail above. The Board also notes that the evidence does not show that the Veteran's back disability improved between his May 2010 application for SSA disability benefits and the October 2021 examination. Thus, the findings in that examination report are applicable to the entire period under review. In any event, the preponderance of the evidence shows that the Veteran has not been in need of regular aid and attendance, regardless of the applicability of that report to earlier years during the pendency of this claim. Accordingly, the preponderance of the evidence shows that the criteria for SMC at the (l) rate based on a need for regular aid and attendance have not been met. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350. As the Veteran has not had the anatomical loss, or loss of use, of both feet, or of one hand and one foot; as his back disability does not affect his eyes, and he is not blind in both eyes, with 5/200 visual acuity or less; and as he is not permanently bedridden, the criteria for SMC at the (l) rate are not otherwise satisfied. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350. Because the preponderance of the evidence is against the claim, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch, 999 F.3d at 1395; 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.