Citation Nr: 1318036 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-30 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to basic eligibility for nonservice-connected pension benefits. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder. 4. Entitlement to service connection for epilepsy. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant served on active duty from December 1989 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007, June 2009, and August 2010 rating decisions of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office. In September 2007, the RO denied service connection for asthma. In June 2009, service connection for schizophrenia and epilepsy was denied. Finally, by decision of August 2010, eligibility for nonservice-connected pension benefits was also denied. The Board remanded the instant claims in April 2012 in order to issue a statement of the case addressing the issue of entitlement to eligibility for nonservice-connected pension benefits and to clarify whether the appellant still desired a personal hearing before a Veterans Law Judge at the RO (Travel Board hearing). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. The evidence that shows that the appellant had been diagnosed with schizophrenia and schizoaffective disorder. The Board has recharacterized the issue on appeal, as reflected on the title page. The issues of service connection for asthma, an acquired psychiatric disorder to include schizophrenia and schizoaffective disorder, and epilepsy being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Because the appellant had peacetime service from December 1989 to January 1990, he did not have 90 days of wartime service, nor did he have less than 90 days of wartime service with an ajudged service-connected disability as required for eligibility for nonservice-connected pension benefits. CONCLUSION OF LAW The service requirements for eligibility for nonservice-connected pension benefits based on the Veteran's service have not been met. 38 U.S.C.A. §§ 101, 1521, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.2, 3.3 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION An appellant who served for 90 days or more, part of which was during a period of war, is eligible for pension benefits under certain circumstances. An appellant may also meet the requirements for basic eligibility for pension with less than 90 days' service if he/she served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected, which would have justified a discharge for disability. 38 U.S.C.A. § 1521. The appellant's DD-214 shows that he had active service from December 1989 to January 1990. He had a total of 29 days of active service during this period. The appellant does not dispute that these dates are his correct dates of service. Periods of wartime are defined by statute and regulation. By regulation, the Vietnam era ended in May 1975 and the Persian Gulf War is defined as beginning in August 1990. 38 C.F.R. § 3.2. The appellant's service thereby ended after the Vietnam era and prior to the Persian Gulf War. This limited service included no service defined as wartime service. 38 C.F.R. § 3.2(f), (g), (h). Since he did not have qualifying wartime service, he is not eligible under the law for any nonservice-connected death pension benefit, based on his active service. This is a case where the law is dispositive. The appellant's service did not include wartime service, and the requirements for basic eligibility for VA nonservice-connected pension benefits are not met. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). Statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of factual evidence. See Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001). The determinative facts of the present appeal (whether the appellant had wartime service) are not in dispute. Resolution of the appellant's appeal is dependent on interpretation of the regulations pertaining to the assignment of nonservice-connected pension benefits. Because there is no reasonable possibility that further notice or assistance would aid in substantiating this claim, any VCAA notice or assistance deficiencies are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet.App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the Appellant in substantiating the claim). Finally, in its April 2012 Remand, the Board observed that the appellant had requested that he be scheduled for a Travel Board hearing, and that he had filed a request in February 2010 for postponement. However, it was also noted that the appellant was incarcerated and that VA's duty to assist the appellant in providing a hearing faced some limitations. The Board directed that the appellant should be contacted to clarify whether he still wished to appear for a personal hearing. In May 2012, the RO advised the appellant that he had been scheduled for a Travel Board hearing in July 2012. The appellant responded in June 2012 that he would appear for the hearing so long as arrangements could be made with the warden to transport him to the RO. He failed to report for his July 2012 Travel Board. However, he subsequently filed a statement indicating that he had not received sufficient notice of the hearing in order to arrange for transportation from the prison to the RO. In January 2013, the appellant was notified by letter that he was scheduled for a Travel Board hearing for February 12, 2013. He was instructed to notify the RO immediately if he would be unable to make the scheduled hearing. If he did not withdraw the hearing request or did not report, his hearing would be considered withdrawn. A deferred rating decision noted that the warden needed to be contracted to determine whether or not the prison would be able to transport him to the hearing at the RO. A report of contact with the warden is not of record. The appellant failed to report for his scheduled Travel Board hearing in February 2013. The appellant has not contacted VA. Given the foregoing, the Board finds that the appellant's request for a Travel Board hearing is considered withdrawn. There has also been substantial compliance with the Board's April 2012 Remand. Multiple attempts have been made to schedule the appellant for a personal hearing. He most recently failed to report for a scheduled hearing and has provided no reason or explanation. ORDER Entitlement to eligibility for basic nonservice-connected pension benefits is denied. REMAND The appellant claims that service connection for asthma, schizophrenia, and epilepsy is warranted based upon service-incurrence. He also asserts in the alternative, that he had preexisting asthma, which was aggravated by his basic training during active service. The appellant asserts that he has been awarded Social Security Administration (SSA) disability benefits (SSDI) due to these aforementioned claimed disabilities. The Court has held that where there is notice the appellant is receiving SSA disability benefits, VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents when there exists a reasonable possibility that the records could help the appellant substantiate the claim for benefits. Murincsak v. Derwinski, 2 Vet.App. 363, 372-3 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Although VA is not obligated to follow a determination made by SSA, these records may be relevant to the matters on appeal. Further, with regard to his respiratory disorder (asthma), the appellant's service treatment records show that he treated during his brief period of service for asthma, which the examiner stated was aggravated by his basic training. He was placed on a course of steroids at that time, and further medicated with an inhaler. Importantly, although his entrance examination showed that he had asthma from ages 2 to 8 years of age, there was no indication that he had asthma since that time, specifically at the time of entrance into service. Moreover, his mother was contacted and she could not verify that he had asthma as a child, indicating to the examiner that her recollection was that he had "sinus" when he was a youngster, which affected his eyes, nose, and throat. The Board notes that when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Accordingly, "[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexisting and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness ... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by affirmative evidence demonstrating that there was no aggravation. See Id. The burden is not met by finding that the record contains insufficient evidence of aggravation. See Id. The appellant is presently incarcerated. However, examination is necessary in this case to determine the etiology of his claimed disorders. Therefore, to the extent possible, the appellant should be scheduled for a VA examination if possible. Accordingly, the case is REMANDED for the following action: 1. Appropriate efforts should be taken to obtain a complete copy of the appellant's SSA disability determination with all associated medical records. Any negative response should be included in the claims file. 2. Thereafter, the appellant should be afforded, if possible, an appropriate VA examination(s). The claims folder must be made available and reviewed by the examiner. All indicated studies should be performed. As for his claim for service connection for a respiratory disorder, to include asthma, the examiner should specifically address the following questions: (a) whether the disability clearly and unmistakably (i.e., obvious or manifest) preexisted service; (b) if so, whether the disability increased in severity during the Veteran's active service; (c) if so, whether there is clear and unmistakable evidence that the disability was not aggravated (i.e., permanently worsened) beyond the natural progression during or as a result of service; (d) if not, whether it is at least likely as not (a 50 percent probability or greater) the disability had its onset in service or is otherwise medically related to the Veteran's service. The examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the appellant's schizophrenia or epilepsy disorder had its onset in service or is due to an event in service. The examiner must discuss any statements made by the appellant regarding the onset and/or chronicity of the pertinent symptoms, to include his claim that his schizophrenia and epilepsy began during his brief period of service. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with each requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all of the evidence of record. If the benefit sought on appeal is not granted, the appellant and his representative, if any, should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs