Citation Nr: 1342996	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  10-00 818	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to nonservice-connected death pension benefits.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 10, 1944, to April 21, 1944.  The appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2008 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  
 

FINDING OF FACT

The Veteran did not have qualifying wartime service or a service-connected disability.


CONCLUSION OF LAW

The criteria for nonservice-connected death pension benefits have not been met.  38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.306 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant seeks nonservice-connected death pension benefits. 
To prevail, the evidence must show that the Veteran (1) served for at least ninety days during a period of war or (2) served during a period of war and was discharged for a service-connected disability.  38 U.S.C.A. § 1521.

It is undisputed that the Veteran served less than 90 days during World War II and that he never claimed a service-connected disability.

The appellant contends that the Veteran was discharged from service for a left leg disability that should have been service-connected.  She asserts that the Veteran's preexisting disability was aggravated by service.

Three years before induction to service, the Veteran underwent left leg surgery to correct damage caused by anterior poliomyelitis.  

The entrance medical examination noted left leg atrophy and slight limp.

Service treatment records show that the Veteran complained of numbness of the toes and foot pain on standing and drilling.  Physical examination showed left leg muscular atrophy and weakness.  

The examiner opined that the Veteran's left leg disability was not aggravated by service, and referred the Veteran to the Board of Medical Survey (Medical Board).

The Medical Board found the Veteran unfit for service because of his disability, and he was discharged from service.  The Medical Board opined that the Veteran's disability was not aggravated by service.

To establish service connection for a preexisting disability that was noted upon entrance to service, the appellant must show that the disability underwent a permanent increase during service.  Jensen v. Brown, 19 F.3d 1413 (Fed.Cir. 1994). 

The appellant does not contend and the record does not show that the Veteran's disability underwent a permanent worsening during service.  She relies, instead, on the fact that the Veteran was unable to participate in physical training due to his disability.

The severity of the disability is consistent across entrance and discharge examination reports.  The Veteran did not complain of a left leg disability at any time after service.  Nor did he challenge the medical opinions that his preexisting disability was not aggravated during service.

While the Veteran was unfit for service due to his disability, the disability did not undergo a permanent worsening during service.

The elements of service connection are not met.

Entitlement to death pension benefits is denied as a matter of law because the Veteran does not have qualifying wartime service or a service-connected disability.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to nonservice-connected death pension benefits is denied.



____________________________________________
RONALD W. SCHOLZ
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs