Citation Nr: 1340272 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-15 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease and pulmonary tuberculosis. 2. Whether the appellant has basic eligibility for entitlement to nonservice-connected pension benefits, to include whether there was clear and unmistakable error in a January 14, 2004 Decision Review Officer decision wherein entitlement to nonservice-connected pension was granted. REPRESENTATION Appellant represented by: Rick Little, Bill Smith Homeless Veterans Project ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant served in the Army National Guard from June 1973 to June 1981, to include active duty for training (ACDUTRA) from June 21, 1973 to February 19, 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision, a January 12, 2004 Decisional Letter, and a July 2006 Decision Review Officer (DRO) decision by the Los, Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2008 when it was remanded for additional development. In August 2011, the Board denied the claims. In December 2011, the appellant's representative filed a Motion to Vacate the August 2011 Board decision. In April 2012, the Board vacated the August 2011 decision, and remanded the matters on appeal for additional development. FINDINGS OF FACT 1. The appellant's respiratory complaints in service were acute and resolved; neither chronic obstructive pulmonary disease nor pulmonary tuberculosis was manifested in service; and a preponderance of the evidence is against a finding that a current respiratory disorder, to include chronic obstructive pulmonary disease or pulmonary tuberculosis, is related to the appellant's service or any event therein. 2. The appellant does not have qualifying active service during a period of war. 3. The January 14, 2004 Decision Review Officer decision granting entitlement to nonservice-connected pension benefits contained clear and unmistakable error since the appellant does not have qualifying active service during a period of war. CONCLUSIONS OF LAW 1. Service connection for a respiratory disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for basic eligibility for nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (as in effect in 2004), (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the claim for service connection for a respiratory disorder, the VCAA duty to notify was satisfied by way of a June 2002 letter. The June 2002 letter was sent prior to the initial RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. While the appellant was not notified of the type of information and evidence needed to establish disability ratings and to establish an effective date, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), such is not prejudicial to the appellant as this decision does not grant entitlement to benefits sought. In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, and post-service VA and private treatment records. The appellant was afforded a VA examination in May 2012. As the May 2012 VA examination was based upon an accurate understanding of the disability at issue, as well as the appellant's documented medical history, with review of his claims file, the Board finds it is adequate for the purposes of deciding his claim for a respiratory disorder decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has been an active participant in the claims process by reporting for a VA examination, responding to notices, and submitting evidence and argument. Thus, the appellant has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Dingess/Hartman, 19 Vet. App. at 492; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534 (Fed. Cir. 1998). Regarding the claim for nonservice-connected pension benefits, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Prinicipi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for pension benefits. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the appellant's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service Connection Claim Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Specifically with respect to National Guard/Reserve members, diseases or injuries incurred or aggravated while performing active duty for training (ACDUTRA) are eligible for service connection. 38 U.S.C.A. §§ 101(24), 106, 1110. However, if performing inactive duty for training (INACDUTRA), generally, only injuries sustained during that time are eligible for service connection. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant's service treatment records show that he was hospitalized from November 26, 1973 to November 29, 1973 for pneumonia of the left lower lobe. From January 14, 1974 to January 18, 1974, he was hospitalized for an acute upper respiratory infection. All pertinent laboratory, x-ray and physical findings were negative, including chest x-ray. He was noted to be symptomatic the first three days and then became asymptomatic. On February 1974 release from active duty examination, the appellant's lungs and chest were found to be normal on clinical evaluation. Post-service treatment records include a December 1992 private treatment report that noted the appellant had been diagnosed with pulmonary tuberculosis in June 1992 and was treated for one month. He did not return for follow-up treatment. In the past month, he had been experiencing coughing, night sweats and weight loss. The diagnosis was pulmonary tuberculosis. VA treatment records include a February 2001 report that noted the appellant was hospitalized with pneumonia during basic training. He had a history of pulmonary tuberculosis in 1992 with treatment for one year. He had a history of smoking cigarettes, one pack per day for 30 years, and smoking cigars, two to three per day for seven years. He reported dyspnea on exertion and occasional chest discomfort. On physical examination, his lungs were manifested by bilateral rales and decreased breath sounds. The diagnoses included chronic bronchitis with acute exacerbation and a history of pulmonary tuberculosis. May 2002 VA treatment records note the appellant's complaint of shortness of breath all day with coughing and headaches. It was indicated that a February 2001 chest x-ray revealed chronic obstructive pulmonary disease. On physical examination, the appellant's lungs were clear with no wheezes, rales, or rhonchi. Chest x-ray revealed hyperinflated lungs with bullous changes in both upper lobes; scarring in the left upper lobe likely due to previous tuberculosis infection; and no evidence of active disease, especially tuberculosis. VA treatment records also include an October 2002 report noting the appellant's complaint of dyspnea, a dry hacking cough, and rhinorrhea. It was noted he continued to smoke cigarettes and cigars. The diagnoses include chronic obstructive pulmonary disease. A February 2003 report noted his complaint of a continued cough and dyspnea. The diagnoses included chronic bronchitis with acute exacerbation. A July 2003 report noted the appellant's complaint of a continued dry hacking cough and occasional dyspnea. The diagnoses included chronic bronchitis. A September 2003 report included a diagnosis of chronic obstructive pulmonary disease. A January 2004 chest x-ray revealed hyperinflated lungs in bullous changes in both upper lobes, and scarring in the left upper lobe likely due to previous tuberculosis infection. A May 2004 chest x-ray revealed chronic obstructive pulmonary disease with large bulla in the right upper lobe. An October 2004 report noted a June 2004 chest x-ray revealed no change in the chronic obstructive pulmonary disease with bullous disease in both upper lobes and parenchymal scarring. It was also noted there was some residual changes of tuberculosis on the chest film. He was being treated for chronic dyspnea likely secondary to moderate chronic obstructive pulmonary disease, and a chronic cough. An October 2004 CT of the thorax revealed extensive bullous changes in both lungs, and scarring consistent with prior inflammatory changes, likely tuberculosis. On May 2012 VA respiratory examination, it was noted that the appellant was diagnosed with left lower lobe pneumonia in 1973, and diagnosed for an upper respiratory infection in 1974. He also has a long history of tobacco use with subsequent diagnoses of pulmonary tuberculosis in 1992 and chronic obstructive pulmonary disease in 2001. After a review of the claims file, it was opined that it was less likely than not the appellant's chronic obstructive pulmonary disease was incurred in or caused by an in-service injury, event, or illness. The examiner noted that aside from residual scarring in pieces of the lungs, there is no evidence of pulmonary tuberculosis anymore. The examiner further stated that there is no evidence in the medical literature that chronic obstructive pulmonary disease is brought on by infections such as pneumonia or upper respiratory infections. The appellant has a long-standing history of tobacco use, which is most likely the cause of chronic obstructive pulmonary disease according to the medical literature. Therefore, it is less likely as not that the appellant's chronic obstructive pulmonary disease is related to the left lower lobe pneumonia and upper respiratory infections the appellant had during his ACDUTRA. The examiner also noted that pulmonary tuberculosis is not known by the medical literature to be brought on by an episode of pneumonia many years ago or an upper respiratory infection. It is not in dispute that the appellant was diagnosed and received treatment for pneumonia of the left lower lobe in November 1973 and an upper respiratory infection in January 1974. Service personnel records show that the appellant was on ACDUTRA from June 21, 1973 to February 19, 1974. It is also not in dispute that the appellant currently has chronic obstructive pulmonary disease and previously (post-service) had pulmonary tuberculosis in 1992. The analysis therefore proceeds to whether there may be a nexus between the appellant's current disability and his service/complaint and treatment therein. While the appellant contends that his current chronic obstructive pulmonary disease and post-service diagnosis of pulmonary tuberculosis are related to his period of ACDUTRA, the Board finds the most probative evidence is against such contention. The only medical opinion that addresses the matter of the etiology of the appellant's current chronic obstructive pulmonary disease and post-service diagnosis of pulmonary tuberculosis is that of the May 2012 VA examiner who opined that the appellant's chronic obstructive pulmonary disease was less likely than not incurred in or caused by the claimed in-service illness, and that medical literature does not show pulmonary tuberculosis to be brought on by an episode of pneumonia or an upper respiratory infection many years prior. The examiner further stated that there is no evidence in the medical literature that chronic obstructive pulmonary disease is brought on by infections such as pneumonia or upper respiratory infections. The appellant has a long-standing history of tobacco use, which is most likely the cause of chronic obstructive pulmonary disease according to the medical literature. The May 2012 VA examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale. Thus, such opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). To the extent the appellant himself believes that his current chronic obstructive pulmonary disease and post-service diagnosis of pulmonary tuberculosis are connected to his period of ACDUTRA, there is nothing in the record establishing that he has the specialized training sufficient to render such an opinion. He is competent to state when he first experienced symptoms. However, the Board finds the contemporaneous report and diagnoses of chronic obstructive pulmonary disease in 2001 and pulmonary tuberculosis in 1992 to be more probative as to the onset of symptoms than the appellant's present recollections being made more than 20 years after his period of ACDUTRA and while in pursuit of his claim for benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence, conflicting statements of the claimant, and the significant time delay between the affiants' observations and the date on which the statements were written in weighing credibility). The Board also notes that medical expertise is required to determine the presence of a disease like chronic obstructive pulmonary disease, and the etiology of such disability requires medical expertise to determine. Moreover, whether the symptoms the appellant claims to have experienced in service or following service are in any way related to his current chronic obstructive pulmonary disease and/or post-service diagnosis of pulmonary tuberculosis is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the appellant's own opinion as to the diagnosis or etiology of his chronic obstructive pulmonary disease and pulmonary tuberculosis is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the opinion of the May 2012 VA examiner to be of significantly greater value than the appellant's lay assertion in this matter. As there is no competent evidence to the contrary, the Board finds such to be persuasive and entitled to great probative value. In this case, the most probative evidence is against a finding that the appellant's chronic obstructive pulmonary disease or pulmonary tuberculosis are related to his period of ACDUTRA. Accordingly, the claim for service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Nonservice-connected Pension Benefits Under VA laws and regulations, the payment of nonservice-connected pension benefits is provided to veterans who are permanently and totally disabled from nonservice-connected disability not the result of the veteran's own willful misconduct. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. §§ 3.3, 3.314(b). In pertinent part, eligibility for nonservice-connected pension benefits may be established by a veteran having active service of either (1) 90 days or more during a period of war; (2) served in the active military service and was discharged or released from such wartime service by reason of disability adjudged service-connected, or at time of discharge had a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) a period of 90 consecutive days or more when such period began or ended during a period of war; or (4) an aggregate of 90 days or more in two or more separate periods of service during more than one war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Along with other periods not here applicable, VA specifically defines periods of war include from February 28, 1961 through May 7, 1975, for the Vietnam era (in the case of veterans who served in Vietnam; otherwise, from August 5, 1964 through May 7, 1975). 38 U.S.C.A. § 101(11), (29); 38 C.F.R. § 3.2(f). The evidence reflects that the appellant had service in the Army National Guard from June 1973 to June 1981, to include active duty for training (ACDUTRA) from June 21, 1973 to February 19, 1974. As such, the Board finds that the appellant's service falls within a period of war. However, service connection has not been awarded for any disability based on his Army National Guard service or his period of ACDUTRA. Thus, the appellant would not be eligible for pension benefits based on any period of ACDUTRA or INACDUTRA. In other words, there is no evidence that, during a period of ACDUTRA, the appellant became disabled from a disease or injury incurred or aggravated in line of duty, or during any period of INACDUTRA, he became disabled from an injury incurred or aggravated in line of duty. As the appellant's National Guard service was not active service, it cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a nonservice-connected pension. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. at 430. As the above evidence reflects that the appellant does not have qualifying military service during a period of war, and this is a threshold requirement for establishing entitlement to pension benefits, there is no legal merit to his claim for pension benefits, and the claim must be denied as a matter of law. Alternatively, the appellant alleges that it must be shown there was clear and unmistakable error (CUE) in the January 14, 2004 DRO decision in order to deny entitlement to nonservice-connected pension benefits. In order to address this contention, the Board finds that some clarification and background of the procedural history of the claim is necessary. In a January 12, 2004 Decisional Letter, the appellant was denied entitlement to nonservice-connected pension benefits. However, in a January 14, 2004 Decision Review Officer (DRO) decision, the appellant was granted entitlement to nonservice-connected pension benefits on the basis that his disabilities rendered him unable to secure or maintain gainful employment; and found that he had active military service during a period of war. In multiple subsequent rating decisions, the RO terminated the grant of entitlement to nonservice-connected pension benefits, finding that there was CUE in the January 14, 2004 DRO decision that granted entitlement to nonservice-connected pension benefits. Consequently, for a complete decision to be made regarding this issue, the Board must address whether there was CUE in the January 14, 2004 DRO decision. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for the error. See Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly holding that in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision); Hines v. Principi, 18 Vet. App. 227, 235 (2004). In Russell v. Principi, 3 Vet. App. 310 (1992), the Court set forth a three-pronged test for determining when there is clear and unmistakable error present in a prior rating decision. These are (1) either the correct facts as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell, 3 Vet. App. at 313-14. Only if this threshold requirement is met does the Board have any obligation to address the merits of the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits); Luallen v. Brown, 8 Vet. App. 92 (1995). The Board finds that the argument advanced by the appellant alleges clear and unmistakable error. See Simmons v. Principi, 17 Vet. App. 104 (2003). Specifically, he states that there was requisite service for the award of nonservice-connected pension benefits. However, as explained above, and as was reflected in the evidence of record at the time of the January 14, 2004 DRO decision, service connection has not and was not awarded for any disability based on his Army National Guard service or his period of ACDUTRA. Thus, the appellant was not eligible for pension benefits based on any period of ACDUTRA or INACDUTRA. As was explained above, service during a period of war alone is insufficient. In order for the appellant's ACDUTRA or INACDUTRA to qualify as active service for the purposes of fulfilling the requisite 90-day threshold for purposes of determining eligibility for nonservice-connected pension benefits, there must be evidence that during a period of ACDUTRA, the appellant was disabled from a disease or injury incurred or aggravated in line of duty, or during any period of INACDUTRA, he became disabled from an injury incurred or aggravated in line of duty; there is no such evidence, now or at the time of the January 14, 2004 DRO decision. Consequently, the appellant's National Guard service was not active service, and there was no qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a nonservice-connected pension at the time of the January 14, 2004 DRO decision. Hence, the January 14, 2004 DRO decision contained CUE in granting entitlement to nonservice-connected pension benefits. ORDER Entitlement to service connection for a respiratory disorder is denied. Entitlement to basic eligibility for nonservice-connected pension benefits is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs