Citation Nr: 20004294 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 18-41 170 DATE: January 21, 2020 ORDER The application to reopen a claim of entitlement to service connection for a left knee disorder is denied. The application to reopen a claim of entitlement to service connection for a respiratory disorder to include asthma, residuals of pneumonia, a chronic cough, adenopathy, bronchitis, reactive airway disease, and chronic obstructive pulmonary (a respiratory disorder) is denied. The application to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. Entitlement to a total rating based on individual unemployability (TDIU) denied. Entitlement to special monthly pension based on the need for regular aid and attendance or at the housebound rate (SMC) is denied. FINDINGS OF FACT 1. An August 1996 rating decision earlier denied the Veteran’s claim of service connection for a left knee disorder, a September 2006 rating decision most recently denied the Veteran’s application to reopen his claim of service connection for a respiratory disorder, and a May 2009 rating decision earlier denied the Veteran’s claim of service connection for bilateral hearing loss; the claimant did not appeal these decisions; he did not submit new and material evidence within the one-year appeal period of any of these decisions; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of any of these decisions which treatment records are new and material evidence. 2. Evidence received since the August 1996, September 2006, and May 2009 rating decisions does not relate to an unestablished fact necessary to substantiate the claims of service connection for a left knee disorder, a respiratory disorder, and bilateral hearing loss. 3. The preponderance of the evidence shows that the Veteran’s service-connected disabilities do not cause him to be unable to secure and follow a substantially gainful occupation at all times during the pendency of the appeal. 4. The Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity; and the preponderance of the evidence of record shows that the Veteran’s service-connected disabilities alone do not cause him to be bedridden; necessitate the care or assistance of another person on a regular basis to attend to the activities of daily living to protect him from the hazards or dangers of his daily environment; has a single permanent disability rated 100 percent disabling and separate and distinct service-connected disabilities independently evaluated as 60 percent or more disabling; and do not cause him to be permanently housebound or permanently institutionalized at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The August 1996, September 2006, and May 2009 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been submitted sufficient to reopen claims of service connection for a left knee disorder, a respiratory disorder, and bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for a TDIU have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. 4. The criteria for SMC based on the need for regular aid and attendance or at the housebound rate have not been met at any time during the pendency of the appeal. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.326, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force (USAF) from February 1958 to August 1961. In October 2015 the Board of Veterans’ Appeal (Board), among other things, remanded the above issues to provide the Veteran with notice of the laws and regulations governing claims to reopen which notice was provided in the subsequent November 2019 supplemental statement of the case. In December 2019, the Board received notice from the Veteran’s representative that she was withdrawing as his representative. The Applications to Reopen As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that an August 1996 rating decision earlier denied the Veteran’s claim of service connection for a left knee disorder. The rating decision denied the claim because service treatment records were negative for a left knee disorder and the record did not show that a current left knee disorder was due to his military service. Similarly, a September 2006 rating decision most recently denied the Veteran’s application to reopen his claim of service connection for a respiratory disorder. The rating decision denied the claim because the record did not show that a current respiratory disorder was due to his military service. Likewise, a May 2009 rating decision earlier denied the Veteran’s claim of service connection for hearing loss. The rating decision denied the claim because the Veteran did not have hearing loss in either ear as defined by the Veterans' Administration (VA) at 38 C.F.R. § 3.385. The Veteran did not appeal the August 1996, September 2006, and May 2009 rating decisions. The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of each of the decisions. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of each of the rating decisions that it had prior knowledge of and were new and material evidence. See Turner, super. Accordingly, the Board finds that the August 1996, September 2006, and May 2009 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final August 1996, September 2006, and May 2009 rating decisions, the Veteran, his representative, and/or VA obtained and associated with the claims file additional medical records and written statements in support of the claims from the Veteran and his wife. As to the additional medical records, they continue to be negative for evidence showing that post-service left knee and respiratory disorders are related to service or to an incident of service origin or that left knee arthritis manifested in the first post-service year. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Hickson, supra. As to the bilateral hearing loss, the post-service record continues to be negative for a diagnosis of hearing loss in either ear as defined by VA. See 38 C.F.R. § 3.385. In fact, the March 2018 VA left knee and respiratory disorder examiner specifically opined that neither disorder is related to service and audiological testing conducted at a December 2018 VA examination showed that the Veteran continued to not have hearing loss in either ear as defined by VA. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that these medical records are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. As to the written statements in support of the claims from the Veteran and his wife, they state, in substance, that the appellant is entitled to service connection for a left knee disorder, a respiratory disorder, and bilateral hearing loss because they are due to his military service. These same claims were, in substance, already before VA at the time of the earlier August 1996, September 2006, and May 2009 rating decisions. Therefore, the Board finds that these statements are neither new nor material evidence as defined by 38 C.F.R. § 3.156(a) because they are duplicative. Simply stated, the Veteran and his wife have repeated the appellant’s earlier claims without providing new evidence. These statements are not new. In summary, the Board finds that the additional evidence added to the claims file since the time of the prior final August 1996, September 2006, and May 2009 rating decisions do not provide credible evidence that the Veteran’s current left knee disorder and respiratory disorder are due to his military service half a century earlier or he has hearing loss in either ear as defined by VA. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385; also see Hickson, supra. Instead, the Board finds that additional evidence added to the claims file since that time is, in substance, duplicative of evidence found in the record at the time of the prior final August 1996, September 2006, and May 2009 rating decisions. Accordingly, these claims to reopen are denied. 38 C.F.R. § 3.156(a). The TDIU Claim The Veteran asserts, in substance, that his service-connected disabilities prevent him from working. I. 38 C.F.R. § 4.16(a) Initially, the Board notes that a TDIU may only be assign in the first instance provided that certain schedular disability ratings requirements. See 38 C.F.R. § 4.16(a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). In this regard, the record shows that the Veteran is only service-connected as follows: (i) a left shoulder disability rated as 20 percent disabling from August 6, 2014; (ii) tinnitus rated as 10 percent disabling from March 23, 2015; and (iii) a cyst rated as noncompensable from December 28, 1995. Therefore, the Board finds the Veteran does not meet the preliminary schedular rating requirements for a TDIU at any time during the pendency of the appeal. 38 C.F.R. § 4.16(a). II. 38 C.F.R. § 4.16(b) Next, the Board notes that an award of a TDIU can also be granted on an extraschedular basis. In this regard, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. In this regard, the Board has no authority to award TDIU under § 4.16(b) in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996)). Rather, the Board’s focus in this part of the current appeal is whether the Veteran meets the criteria for a referral of his claim to the Director, Compensation System, for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Given the above criteria, the Board finds that the preponderance of the evidence shows that the Veteran does not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16(b) at any time during the pendency of the appeal. See Owens, supra. In reaching this conclusion, the Board has not overlooked the fact that in March 2016 and March 2017 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the private examiners opined that the Veteran requires the assistance of another person for locomotion. However, the Board finds that the March 2016 and March 2017 opinions are not probative evidence as to whether the Veteran’s service-connected disabilities prevent him from working because the examiners’ failed to cite to any of his service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) as the cause for his need of assistance. See Owens, supra. Instead, the Board finds that the opinions rely solely on the adverse impact of his many nonservice-connected disabilities in reaching their conclusion. Id. Overall, they provide evidence against this claim. In reaching the conclusion that the claimant does not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16(b), the Board has also not overlooked the fact the April 2015 VA examiner opined that the Veteran’s service-connected left shoulder disorder would prevent him from doing any job that required heavy lifting or repeated overhead use and at the December 2018 VA examination the Veteran reported that his tinnitus was bothersome to his day-to-day life. However, the Board finds that at neither of the above two VA examinations nor in any of the other medical evidence of record did a healthcare professional opine that the Veteran’s service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) caused him to be unable to secure and follow any substantially gainful occupation. See Colvin, supra, Owens, supra. Furthermore, the Board does not find the Veteran’s and his wife’s claims that the appellant’s service-connected disabilities prevent him from working probative because they do not have the required medical experience to provide an answer to this complex medical question. See Davidson, supra. Lastly, given the Veteran’s failure to provide VA with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU claim’s form), the Board is compelled to adjudicate the appeal based on the evidence of record which does not include any evidence that his service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst), acting alone, prevent him from working in his passed occupation or another suitable occupation. See 38 C.F.R. § 3.655(b); Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence.”). This finding does not suggest, in any way, that the Veteran did not have some occupational problems because of his service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst); if he did not have any problems, there would be no basis for any compensation. The only question is whether his service-connected left shoulder disability, tinnitus, and cyst, standing alone, caused him not to work. Given the above, the Board finds the most probative medical evidence of record shows that the Veteran’s service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) do not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16(b). See Owens, supra. Therefore, the Board finds that the claim for a TDIU is denied. 38 C.F.R. § 4.16. The Special Monthly Compensation Claim The Veteran claims he is entitled to SMC because, in substance, he needs the aid of another person. I. Regular Aid and Attendance A veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less or is permanently bedridden or so helpless as to be in need of regular aid and attendance under criteria set forth in 38 C.F.R. § 3.352(a) shall receive the provided level of compensation. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under the provisions of 38 C.F.R. § 3.352(a), the criteria to establish a factual need for aid and attendance include the inability of the veteran to dress or undress himself; ability to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances, which, by reason of the particular disability, cannot be done without aid; the inability to feed himself; the inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. An individual who is bedridden meets the criteria for aid and attendance. The regulation provides that being “bedridden” means that the condition which, through its essential character, actually requires that the claimant remain in bed. 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 to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). a. Loss/Loss of use of Both Feet, Loss of One Hand and One foot, and/or Visual Impairment The record indicates that throughout the pendency of the appeal the Veteran has been service-connected for a left shoulder disability rated as 20 percent disabling, tinnitus rated as 10 percent disabling, and a cyst rated as noncompensable. The Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity. Therefore, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at all times during the pendency of the appeal. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). b. Bedridden As to being bedridden, the Veteran does not claim and the record, including the March 2016 and March 2017 VA Form 21-2680, Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance as well as the April 2015, March 2018, and December 2018 VA examinations, does not show that he is bedridden due to only his service-connected disabilities (i.e., a left shoulder disability, tinnitus, and a cyst). See Owens, supra. Therefore, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at all times during the pendency of the appeal. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). c. Factual Need for Aid and Attendance As to a factual need for aid and attendance, as noted above, in March 2016 and March 2017 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the private examiners opined that the Veteran requires the assistance of another person for locomotion. However, the Board finds that the March 2016 and March 2017 opinions are not probative evidence as whether the Veteran’s service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) cause a factual need for aid and attendance(i.e., caused an inability of the Veteran to dress or undress himself; an inability to keep himself ordinarily clean and presentable; requires frequent adjustment of a special prosthetic or orthopedic appliances; causes an inability to feed oneself; causes an inability to attend to the wants of nature; or cause an incapacity that requires assistance on a regular basis to protect him from hazards or dangers incident to his daily environment). The Board has reached this conclusion because the examiners’ failed to cite to any of his service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) as to the cause for his need of assistance. See Owens, supra. Instead, the Board finds that they opinion rely solely on the adverse impact of his many nonservice-connected disabilities in reaching their conclusion. Id. Similarly, while the April 2015 VA examiner opined that the Veteran’s service-connected left shoulder disorder would prevent him from doing any job that required heavy lifting or repeated overhead use and at the December 2018 VA examination the Veteran reported that his tinnitus was bothersome to his day-to-day life, the Board finds that at neither of the above two VA examinations nor any of the other medical evidence of record, including the March 2018 VA examination, shows that the Veteran’s service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst) cause a factual need for aid and attendance (i.e., caused an inability of the Veteran to dress or undress himself; an inability to keep himself ordinarily clean and presentable; requires frequent adjustment of a special prosthetic or orthopedic appliances; causes an inability to feed oneself; causes an inability to attend to the wants of nature; or cause an incapacity that requires assistance on a regular basis to protect him from hazards or dangers incident to his daily environment). See Colvin, supra, Owens, supra. Furthermore, while the Veteran and his wife can report on the observable problems caused by the appellant’s service-connected disabilities (i.e. a left shoulder disability, tinnitus, and a cyst), the Board does not find they can provide a competent opinion on the service-connected disabilities causing a factual need for aid and attendance because they do not have the required medical experience to provide an answer to this complex medical question. See Davidson, supra. Based upon the above, the Board finds that the most probative evidence of record shows that the Veteran does not require the care or assistance on a regular basis due to his service-connected disabilities, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment, during the entire time frame on appeal. See Owens, supra. Therefore, the Board finds that the claim for SMC based on the need for aid and attendance is also denied under this part of the criteria during the entire time frame on appeal. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). II. Housebound As to the housebound claim, if a veteran does not qualify for increased benefits based on the need for aid and attendance, increased compensation benefits may still be payable if has a single permanent disability rated 100 percent disabling and has either additional service-connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). The “permanently housebound” requirement is met when the veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. Id. a. 100 percent plus 60 percent As noted above, the Veteran is only service-connected for three disabilities-a left shoulder disability rated as 20 percent disabling, tinnitus rated as 10 percent disabling, and a cyst rated as noncompensable. Moreover, as discussed above the Veteran is not entitled to a TDIU due to his three service-connected disabilities and, even if he was, the Court has held that a TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). Therefore, because the Veteran does not have a single permanent disability rated 100 percent disabling and separate and distinct service-connected disabilities independently evaluated as 60 percent or more disabling, the Board finds that the claim for SMC based on this part of the housebound criteria are not met at all times applicable to the claim on appeal. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). b. Permanently Housebound and/or Permanently Institutionalized As to being “permanently housebound” by reason of disability or disabilities, the Board finds that nothing in the record, including the findings by the March 2016 and March 2017 VA Form 21-2680, Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance as well as the April 2015, March 2018, and December 2018 VA examinations, suggests that the Veteran is permanently housebound or permanently institutionalized due to only his service-connected disabilities (i.e., a left shoulder disability, tinnitus, and a cyst). See, Owens, supra. In reaching this conclusion, the Board has not overlooked any lay claims from the Veteran and his wife that his service-connected left shoulder disability, tinnitus, and a cyst so impair him that he is, in substance, housebound. However, the Board once again finds that providing an opinion as to whether his service-connected disabilities make him housebound requires special medical training that lay persons do not have. Therefore, the Board finds the determination is “medical in nature” and not capable of lay observation. See Davidson, supra. Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that any lay opinions are not competent evidence. See Jandreau, supra. The Board finds that the most probative evidence of record shows that the Veteran’s service-connected disabilities neither confine him to his dwelling and the immediate premises, nor require permanent institutionalization at any time during the time frame that is the subject of the appeal. See Owens, supra. Therefore, the Board also finds that the claim for SMC based on this part of the housebound criteria are not met at all times during the pendency of claim on appeal. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). Based upon the foregoing, the Board concludes that the preponderance of the evidence is against a favorable finding in this appeal. The Veteran is not entitled to SMC based upon the need for aid of another person to keep him safe and/or because he is housebound. Conclusions In reaching all of the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.