Citation Nr: 22013602 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-43 268 DATE: March 10, 2022 ORDER Entitlement to an increased rating in excess of 10 percent prior to August 8, 2017, for limitation of extension of degenerative joint disease of the right knee is denied. Entitlement to a separate 10 percent rating for slight instability of the right knee prior to August 8, 2017, is granted. Entitlement to an increased rating of 60 percent as of October 1, 2018, for residuals of a total right knee replacement is granted. Entitlement to a total disability based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on regular need for aid and attendance is denied. FINDINGS OF FACT 1. Prior to the Veteran's total knee replacement on August 8, 2017, his degenerative joint disease of the right knee manifested in chronic pain, slight instability, and extension limited to 10 degrees. 2. As of October 1, 2018, the Veteran experienced chronic residuals of severe painful motion or weakness in the right knee. 3. The Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. 4. The Veteran's service-connected disabilities do not require the care or assistance of another on a regular basis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent prior to August 8, 2017, for limitation of extension of degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (prior to February 7, 2021). 2. The criteria for entitlement to a separate 10 percent rating for slight instability of the right knee prior to August 8, 2017, is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.6, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (prior to February 7, 2021). 3. The criteria for entitlement to an increased rating of 60 percent as of October 1, 2018, for residuals of a total right knee replacement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5055. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. 5. The criteria for entitlement to SMC based on regular need for aid and attendance have not been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to April 1974. These matters are on appeal to the Board of Veterans' Appeals (Board) from an August 2015 rating decision. The Board remanded the claims in November 2021 for issuance of an SSOC, which was issued in January 2022. 1. Increased rating for the right knee The Veteran was granted service connection for degenerative joint disease of the right knee in an August 2015 rating decision rated at 10 percent disabling based on limitation of extension effective February 17, 2015, the date of receipt of claim. The Veteran timely appealed. He underwent a total knee replacement on August 8, 2017. In a September 2017 rating decision, he was granted a 100 percent temporary total evaluation for convalescence from August 8, 2017, to October 1, 2018. He was assigned a 30 percent rating thereafter as the minimum rating for residuals of the replacement. (a) prior to August 8, 2017 As an initial increased rating claim, the Board will consider the evidence as of the initial date of service connection, February 17, 2015. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. In a July 2015 letter, a private orthopedic physician stated that the Veteran can only stand approximately 5 to 6 minutes before his bilateral knees experienced increased pain. He can only walk 50 to 100 feet with knee braces. Upon examination, he complained of constant pain that worsened with standing and walking. He wore knee braces on both knees. He felt his knees give out, causing him to fall. His right knee range of motion was 0 degrees extension to 110 degrees flexion. He had documented pain on movement, deformity, disturbance of locomotion and interference with sitting, standing, and weight bearing in both knees. He wore braces or used crutches on a nearly constant basis. The VA medical treatment records reflect consistent complaints of chronic right knee pain prior to his knee replacement. In January 2016, his active range of motion (ROM) was 0 to 100 degrees, with passive ROM to 115 degrees. In February 2016, his ROM was 0 to 115 degrees. In March 2016, his ROM was 0 to 110 degrees. In a May 2016 Emergency Department visit for right knee pain, the ROM was noted to be restricted with pain and tenderness with walking. In February 2017, the ROM was 0 to 120 degrees with pain that worsened with activity. In a July 2017 VA examination, the Veteran did not report flare-ups but reported a functional loss in his ability to stand for prolonged periods or climb stairs. His ROM was 10 to 95 degrees. Pain was noted on examination with flexion and extension but did not cause a functional loss. There was evidence of pain with weight bearing and evidence of crepitus. The Veteran was not examined immediately after repetitive use over time, and the examiner was unable to say without mere speculation whether the Veteran was additionally limited following repetitive use over time. There was no instability upon joint stability testing. The examiner indicated the Veteran did not have a meniscus condition. He used crutches constantly. As pointed out by the Veteran, through his representative, the examiner did not adequately consider the Veteran's additionally reduced ROM or additionally limited functional impairment as found to be required by the Court of Appeals for Veterans Claims (Court) in Sharp, 29 Vet. App. 26. In a July 2017 VA treatment record, the Veteran complained of pain, instability, and giving way of the bilateral knees. His ROM was 0 to 120 degrees. Overall, the evidence prior to his knee replacement does not warrant a separate compensable rating for limitation of flexion as the Veteran's most reduced flexion was to 95 degrees. The evidence shows limitation of extension reduced at most to 10 degrees, warranting the already assigned 10 percent rating, but no higher. The Board has considered any additional functional impairment due to objective pain on movement; however, the objective evidence does not show that his extension was additionally limited. While the evidence consistently showed chronic painful movement, it also showed consistent extension from 0 to 10 degrees and flexion from 95 to 115 degrees. Thus, the Board concludes that the functional loss suffered by the Veteran due to painful motion limited his ROM to, at most, 10 degrees extension and 95 degrees flexion. The Board must also consider whether a separate rating for instability is warranted. Prior to February 7, 2021, Diagnostic Code 5257 provided that a 10 percent rating was warranted for slight recurrent subluxation or lateral instability; a 20 percent rating was warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The only objective stability testing was negative; however, in English v. Wilkie, the Court held that, unless explicitly contemplated, objective evidence of a symptom is not categorically more probative than lay evidence in determining whether to assign an increased rating. 30 Vet. App. 347, 353 (2018). The Veteran does complain of instability and giving way, causing him to fall, on more than one occasion prior to his knee replacement. The Board has no reason to question the veracity of these statements and finds the Veteran to be competent and credible in this regard. Moreover, the evidence shows that he uses braces and crutches constantly, indicating some need for assisted stability. Because there is evidence both against and in support of a finding of instability, the Board concludes that a separate 10 percent rating is warranted for slight instability. The evidence does not indicate that the instability is anything more severe than slight. The fact that instability was not found on objective testing suggests that, to the extent instability exists, it is of a slight nature. (b) as of October 1, 2018 The Veteran's residuals of a right knee replacement have been rated as 30 percent disabling under Diagnostic Code 5055. After the temporary total period, a 60 percent rating for chronic residuals consisting of severe painful motion or weakness in the affected extremity is warranted. A minimum rating of 30 percent is provided post knee replacement. Finally, for intermediate degrees of residual weakness, pain, or limitation of motion, warranting a rating greater than 30 percent, but less than 60 percent, the disability should be rated by analogy to Diagnostic Codes 5256, 5261, 5262. 38 C.F.R. § 4.71a. As of February 7, 2021, Diagnostic Code 5055 was revised to shorten the temporary total rating period after a total replacement surgery; the diagnostic criteria are otherwise unchanged. Because the temporary total rating period was prior to February 7, 2021, those revisions are not relevant to the analysis in this decision. Under the revised criteria, note (1) to Diagnostic Code 5055 clarifies that when an evaluation is assigned for joint resurfacing or prosthetic replacement of a joint, an additional rating under § 4.71a may not also be assigned for that joint unless otherwise directed. While the Veteran is in receipt of a total rating until October 1, 2018, the Board will consider the evidence during that period as it is relevant to his post-operative state. Turning to his VA treatment records, in September 2017, he reported less pain and swelling, and his ROM and activities of daily living had improved. He still maintained some restricted ROM. In April 2018, he was in a lot of pain and expressed thinking that his knees would be much better. The assessment was chronic knee pain, and it was noted that he was still having a lot of pain post-surgery and was having a difficult time coping. In August 2018, he complained of constant aching in the knees, and walking more than approximately 75 feet and standing in one spot for more than five minutes made the pain worsen. In October 2018, both his knees gave out, causing him to fall in the bathtub. In an occupational therapy consultation, the Veteran reported that since his surgeries, it was becoming more difficult to lift his legs into the bathtub. In January 2019, he reported that his knees had been giving him trouble and had not felt right for some time. However, an addendum states that his right knee had recently given out, but that this rarely happened, and most of the time he had no problems with the right knee. In a physical therapy consultation, his ROM was noted to be within functional limits but was somewhat restricted. He reported multiple stumbles because his knees tended to buckle. In April 2019, he continued to complain of chronic knee pain. In February 2020, he reported falling more than four times in the last six months, and his sleep was disturbed due to pain following the surgery. He complained of knees buckling at times. In a November 2020 VA examination, the Veteran reported current symptoms of throbbing pain in both knees with "locking up." He was currently taking pain medication daily and using ice for treatment. He did not report flare-ups, but he endorsed a functional loss due to his inability to walk, stand, or sit for any length of time. His ROM was 10 to 120 degrees with pain noted at flexion and extension. Both knees were tender and sore. There was evidence of pain with weight bearing and crepitus. The Veteran did not undergo repetitive use testing due to fear of pain, but the examiner estimated that the ROM was further restricted to 20 to 110 degrees under those circumstances due to pain, fatigue, weakness, lack of endurance, and incoordination. He had a reduction in muscle strength. There was moderate lateral instability and recurrent effusion. He used a brace and cane constantly. There was objective evidence of pain on passive ROM testing and in non-weight bearing. The examiner did not indicate whether the Veteran's residuals were intermediate or chronic. In a July 2021 VA examination, the Veteran reported that his current symptom was pain in the right knee. He did not report flare-ups, but he had difficulty walking due to pain and required assistance with activities of daily living. It was indicated that the Veteran did not report a history of instability or frequent effusion. His active ROM was 0 to 110 degrees, and his restricted ROM contributed to a functional loss because he required assistance to pick up items due to his inability to bend. Pain was noted in flexion and extension, as well as passive ROM (which was also 0 to 110 degrees, and weight bearing. The examiner commented that the Veteran required assistance with bathing and cleaning due to pain. There was moderate tenderness with no evidence of crepitus. Upon repetitive use testing with three repetitions, no additional functional loss or ROM was indicated, yet the examiner also indicated that pain caused this additional functional loss. The examiner indicated that procured evidence did not suggest that the Veteran was additionally limited with repeated use over time. There was no recurrent subluxation or persistent instability and no recurrent patellar instability. He used crutches constantly, though the examiner indicated it was due to the left knee disability. The examiner did not indicate whether the Veteran's residuals were intermediate or chronic. In a July 2021 treatment record, he complained of chronic knee pain. In August 2021, he reported that he had been doing well following his knee replacement until approximately two to three months earlier when he developed intermittent anterior knee pain and catching. When he wakes in the morning or if he sits with his knees flexed for long periods of time, he must unlock his knees, which is painful. He reported no pain with walking, standing, or any specific activity, and no instability. On examination, his knee looked normal with mild crepitus and ROM 0 to 120 degrees. In October 2021, the Veteran was referred to physical therapy for multiple joint pain, including the knees. His pain and functioning were generally worsening, and his quality of life continued to diminish. His ROM was 5 to 110 degrees. In a January 2022 VA examination, he endorsed pain and locking of the knee. He currently used physical therapy, medication, ice, and heat for treatment. He did not report flare-ups, but was unable to climb stairs, stand, bend, lift, or walk long distances. He reported a history of instability because his knee locked up and gave out. He reported a history of frequent effusion. His ROM was 10 to 90 degrees with pain on active and passive motion that caused the above functional loss. There was objective evidence of crepitus. The examiner opined that repetitive use testing did not cause additional functional loss or reduced ROM. He had disturbance of locomotion and swelling. The Veteran experienced moderate recurrent subluxation and slight persistent instability with a prescription for a cane. He also regularly used a brace and the examiner indicated that the assistive devices were for both knees. The examiner opined that the Veteran experienced intermediate degrees of residual weakness, pain, or limitation of motion. The evidence shows that the Veteran continued to experience ongoing pain and instability post-surgery. While there are a few records indicating the pain is intermittent, there are numerous complaints and medical assessments of chronic knee pain and instability from 2018 to the present. The Board finds the November 2020 and January 2022 examination reports more probative than the July 2021 report, as the July 2021 report contained both internal and external inconsistencies. Though the January 2022 examiner indicated the Veteran experienced intermediate residuals, the Board finds that the medical evidence of record more accurately depicts chronic residuals, both in name and in frequency. Accordingly, the Veteran is entitled to a 60 percent rating for chronic total knee replacement residuals of severe pain and weakness (instability) as of October 1, 2018. 2. Entitlement to a TDIU The Veteran applied for a TDIU in June 2021, and it has not been adjudicated in a rating decision by the RO. However, because entitlement to a TDIU was raised during the pendency of his right knee increased rating claim, the TDIU claim is part and parcel to the right knee claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating). Accordingly, the claim is properly in front of the Board. TDIU may be assigned where the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient for TDIU purposes. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and/or mental acts required by employment by reason of their service-connected disabilities. In this regard, the Court has held the phrase "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components: one economic and the other non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). The economic component contemplates an occupation earning more than marginal income, outside of a protected environment, as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component contemplates the veteran's ability to follow and secure employment. In this respect, due consideration must be given to their history, education, skill, and training; physical ability, both exertional and non-exertional, to perform the types of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue; and mental ability to perform the activities required by the occupation at issue. Given sedentary is defined as "doing or requiring much sitting" the Board will consider sedentary employment as a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (11th ed.) (2003). In this context, appropriate factors for consideration are the veteran's employment history, educational and vocational attainment and any other factors bearing on the issue. 38 C.F.R. §§ 3.341, 4.16. However, a veteran's age or the impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. As a preliminary matter, for TDIU consideration the veteran must meet the disability rating percentage threshold. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. If a veteran is service connected for only one disability, that disability must be rated at 60 percent disabling or more. 38 C.F.R. §§ 4.16 (a), 4.25. If a veteran is service-connected for two or more disabilities, at least one of the disabilities must be rated at 40 percent disabling or more and the additional service-connected disabilities must bring the combined disability rating to 70 percent or more. Id. The Veteran is service connected for the following disabilities: instability of the left knee; residuals of a total left knee replacement; right knee degenerative joint disease; right knee instability; residuals of a total right knee replacement; painful scars; radiculopathy of the bilateral lower extremities; tinnitus; degenerative joint disease of the thoracolumbar spine; post-operative residuals of a meniscectomy of the left knee; residuals of a left hip replacement; and several noncompensable ratings for scars associated with his surgeries. He meets the schedular criteria throughout the appeal period. In his VA Form 21-8940 application, the Veteran indicated that his knees, hip, and back disabilities rendered him unemployable. He indicated the last date he worked full-time was January 30, 2015. He worked as a project manager for Delta Airlines from 1978 to 2005 and was self-employed in an embroidery business from February 2014 to January 2015 with significant time lost due to illness. He indicated that he left employment because of his disabilities. He completed some college (other records show he obtained an associates degree) and post-high school training. In the Veteran's 2015 application for Social Security disability benefits, he stated that he continued working as long as he could but was unable to continue due to his knee and back disabilities. His work history included a bus driver for approximately a year and a half following his retirement from Delta, an operations manager for a charter bus company from May 2007 to June 2011, and a sales clerk for a hardware/lumbar business from January 2012 to February 2015. He was unable to sit or stand longer than an hour or walk a distance of more than 20 feet. He used assistive devices as needed. He could not lift more than a few pounds. An April 2019 physical therapy evaluation record states that the Veteran is unable to work. In a July 2021 statement, the Veteran explained that he owned an embroidery/T-shirt home business but lost his business following his 2015 left leg fracture followed by two knee replacements and a hip replacement. At that time, he was awaiting a back surgery. The VA examinations of record also contain some probative evidence on how the disabilities affect the Veteran's ability to maintain employment. The July 2017, July 2021, and January 2022 examinations for his knee disabilities indicated no functional impairment in his ability to work. In a July 2021 examination for the Veteran's left hip, the examiner opined that if the Veteran was employed, he would be limited to three breaks per hour to help prevent left hip pain. He would be restricted to the amount of weight he could lift, approximately five pounds. Also, due to limited ROM, it would be difficult for him to bend down to pick up items. The July 2021 examiner for the back disability did not find that the Veteran's ability to perform occupational tasks was impaired. In a January 2021 tinnitus examination, the examiner opined that the Veteran's tinnitus makes it difficult to communicate and hear in group environments, and the Veteran reported the ringing in his ears makes him want to avoid people. The November 2020 examiner for the knees indicated that the Veteran had to stop working at his own embroidery business because of his disability. He would have lost two to four weeks of work in the past 12 months due to his disability, and was unable to stand, walk, or sit for long periods. In his November 2020 peripheral nerves examination, the examiner indicated that the Veteran's ability to work was impaired because he was unable to walk or stand without having numbness in the feet. In his November 2020 back examination, the examiner opined that the Veteran's ability to work was impaired because he was unable to sit, walk, or stand for long. In a March 2019 examination for the left hip, the examiner opined that the left hip condition would limit any job requiring walking, prolonged standing, and bending. In an April 2016 back examination, the examiner found that the back condition impaired the Veteran's ability to work due to his inability to lift, carry, or stand for long periods. The evidence is clear that the Veteran left the workforce after an injury to his service-connected left knee followed by several surgeries for service-connected disabilities. The evidence is also clear that the Veteran has significant difficulty walking, standing, or sitting for prolonged periods due to his musculoskeletal disabilities, making both physical and sedentary work untenable. The Veteran has supervisory experience and based on his work history, is likely qualified for a sedentary position. However, an inability to sit for more than an hour at a time would make it difficult for the Veteran to carry out his duties without taking several breaks, disrupting workflow and decreasing productivity. Even sedentary positions likely require some amount of time walking, which could pose challenges for the Veteran. Ultimately, his musculoskeletal disabilities impair his physical ability to carry out even simple activities of daily living to such a debilitating degree that maintaining both physical and sedentary employment would be untenable. Entitlement to a TDIU based on his service-connected disabilities is granted. 3. Entitlement to SMC based on regular need for aid and attendance The Board must consider entitlement to SMC when raised. Akles v. Derwinski, 1 Vet. App. 118 (1991). In Social Security Administration records prior to the Veteran's knee replacement, evidence showed that his wife assisted him with putting on his pants, socks, and shoes, and prepared most meals for him. Post-surgery, the July 2021 VA examiner remarked that the Veteran needed assistance with daily activities such as bathing and cleaning. Thus, the Board finds the issue of entitlement to SMC has been raised by the record throughout the entirety of the appeal. SMC is a monetary benefit that is paid for service-connected disabilities which result in impairment of the senses, loss or loss of use (of the extremities, creative organ, breast, or buttocks), or which render the veteran housebound or in need of the regular aid and attendance of another person. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The need for aid and attendance means being so helpless as to require the regular aid attendance of another person. 38 C.F.R. § 3.350 (b). Under 38 C.F.R. § 3.352 (a), the following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, 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. They must be based on the actual requirement of personal assistance from others. Id. While the evidence does show that the Veteran needs assistance for various tasks, the overall evidence does not show that he is in regular need of aid and attendance in accordance with 38 C.F.R. § 3.352 (a). Pre-surgery, in 2015 the Veteran filed for Social Security disability benefits due to his bilateral knee and back disabilities. In describing his ability to conduct activities of daily living, he stated he could not walk more than 20 feet and could not sit nor stand longer than an hour. He used a cane, crutches, and walker as needed. He could make himself a sandwich three to four times a week but could not prepare full meals because of his inability to stand for long. His wife fed and bathed the pets. Because of his knee braces, his wife helped him put on his pants, shoes, and socks. He was unable to do any household chores. He was able to drive and do some grocery shopping, though his wife does most of the shopping. He could visit friends once or twice weekly without assistance. He did not require any reminders taking medicine or assistance paying bills. While the evidence clearly showed restrictions in the Veteran's ability to perform activities of daily living to some degree pre-surgery requiring the assistance of his wife, it does not show that he was in regular need of aid and attendance. The Veteran was able to live largely independently, though he had to adjust due to his inability to sit, stand, and walk for prolonged periods requiring assistive devices. While his wife assisted with most meals and with dressing some articles of clothing, this is not sufficient to show a regular need of aid and assistance. The Veteran could feed himself; the difficulty appeared to be with his inability to stand for prolonged periods and not an inability to feed himself or to protect him from danger. While the Board appreciates these challenges, the evidence did not show an inability to dress himself, feed himself, tend to the wants of nature, nor did it show a physical or mental incapacity requiring assistance to protect the Veteran from certain hazards or dangers. Post-surgery, the Veteran reported difficulties with his activities of daily living at home, including lifting his legs into the bathtub. He reported showering outside at his pool shower because he was unable to get in and out of the garden tub at home. In January 2019, he reported that he was independent in his home and community and could drive. He used a cane as needed. In February 2020, he reported that he was not very active aside from household chores and he was unable to perform manual labor anymore. In August 2021 it was noted that his mobility is severely limited from his previous baseline, and he reported he was unable to do yard work anymore. In the July 2021 VA examination report, the examiner explained that the Veteran had difficulty walking and required assistance with activities of daily living. He could not bend down and pick up items and required assistance. He required assistance with bathing and cleaning due to pain. While the evidence shows increasing difficulty with daily activities such as bathing, the Board still finds that it is insufficient to show a regular need for aid and assistance. In October 2018, the Veteran was able to bathe himself, though he had to use his outdoor shower rather than his in-home tub. In January 2019, he reported being independent and was still able to drive, suggesting that he continues to live an independent lifestyle. In short, while the record does reflect restrictions and some assistance from his spouse due to his disabilities, it does not reflect that the Veteran is so helpless as to be in regular need of aid and attendance. Entitlement to SMC on that basis is denied. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.