Citation Nr: 1631093 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 11-32 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left leg disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for a bilateral knee disability, including degenerative joint disease (DJD). 4. Entitlement to nonservice-connected pension benefits. 5. Entitlement to service connection for an acquired psychiatric disability, including depression with anxiety. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from October 27, 1966 to December 14, 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2015, the Veteran presented sworn testimony during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In May 2015, the Board remanded the Veteran's claims for further evidentiary development. The issue of entitlement to service connection for an acquired psychiatric disability, including depression with anxiety, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A left leg disability indisputably pre-existed the Veteran's entry into active service and indisputably did not increase in severity beyond the natural progress of the disease during service. 2. A bilateral foot disability indisputably pre-existed the Veteran's entry into active service and indisputably did not increase in severity beyond the natural progress of the disease during service. 3. A chronic bilateral knee disability did not have its clinical onset in service or until years later and is not otherwise related to the Veteran's active service; DJD of the knees were not exhibited within the first post service year. 4. The Veteran did not serve on active duty for 90 days or more during a period of war and was not discharged or released from active service for a service-connected disability. CONCLUSIONS OF LAW 1. A left leg disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated therein. 38 U.S.C.A. §§ 1101, 1111, 1112, 1131, 1137, 1153, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307(a), 3.309(a) (2015). 2. A bilateral foot disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated therein. 38 U.S.C.A. §§ 1101, 1111, 1112, 1131, 1137, 1153, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307(a), 3.309(a) (2015). 3. A chronic bilateral knee disability was not incurred in or aggravated by active service, and DJD of the knees may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 4. The Veteran's military service does not meet the threshold service eligibility requirements for nonservice-connected pension benefits. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As to the claims of entitlement to service connection, a pre-decisional notice letter dated in April 2009 complied with VA's duty to notify the Veteran with the claims adjudicated herein. Thus, the duty to notify is met. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2015 hearing, the undersigned Veterans Law Judge outlined the issues on appeal and information was also obtained to clarify the Veteran's arguments. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103; they have not identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2). Regarding VA's duty to assist, the RO obtained service personnel records, service treatment records (STRs), as well as, private and VA treatment records in furtherance of his claims. As indicated above, the claim was remanded in May 2015 to obtain Social Security Administration (SSA) records and VA examinations as to the nature and etiology of the Veteran's left leg, bilateral foot, and knee disabilities. In July 2015, SSA responded to a request for SSA records and indicated that all records in their possession had been destroyed and were, therefore, unavailable. In September 2015 the Veteran was afforded VA examinations to determine the nature and etiology of his left leg, bilateral foot, and knee disabilities. The Board finds that the September 2015 VA examination reports obtained in this case is adequate, as they were predicated on a full reading of the STRs as well as the private and VA medical records contained in the claims file. The VA examiner considered all of the pertinent evidence of record, including the contentions of the Veteran and provided a complete rationale for the opinions stated. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, there has been substantial compliance with the May 2015 Board Remand directives, and no further development in this regard is necessary. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). Accordingly, the duty to assist is also met. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) , such as arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Moreover, every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as an ordinary claim of service connection, meaning that if service connection is established there is no deduction for any pre-existing portion of the disability. Wagner, 370 F.3d at 1089. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. §§ 1153, 1137; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A. Left Leg and Bilateral Foot Disabilities Here, the Veteran claims his left leg and bilateral foot disabilities pre-existed his military service and were aggravated thereby. See, e.g., Board hearing transcript dated May 2015. He explains that he had polio as a child and consequently had atrophied leg muscles. See VA treatment record dated August 2012. He asserts that his preexisting disabilities worsened during military, namely due to marching in basic training. See VA form 21-526 dated March 2009 and notice of disagreement dated December 2009. The medical evidence of record includes diagnoses of residuals of polio muscular weakness and atrophy of the left lower leg and bilateral pes planus. See VA examination report dated September 2015 and VA treatment record dated August 2012. Thus, current disabilities have been demonstrated. The Veteran's August 1966 enlistment examination report shows that a clinical evaluation of the Veteran's lower extremities was normal. As the Veteran's entrance examination did not reveal evidence of any lower extremities disability, he is entitled to the presumption of soundness and the Board must consider whether that presumption is rebutted by clear and unmistakable evidence. A STR dated in early November 1966 reveals that the Veteran had been seen on several occasions, claiming that one leg was shorter than the other, and that he was "crippled" and could not march or exercise. An examining physician found that there were no abnormalities of the Veteran's legs and noted bilateral flat feet. Later that month, the Veteran complained of weakness and fatigability in the left lower extremity. He reported that it had been present since birth. He was diagnosed with atrophy muscles, calf, and quadriceps musculature of the left lower extremity. The examiner noted that the Veteran's diagnosis existed prior to service and recommend that the Veteran be disqualified for induction. A November 1966 Medical Board proceeding found that the Veteran was not qualified for service, due to weakness of the muscles and the quadriceps of the left lower extremity, noting that further duty could aggravate the problem. The Veteran was discharged. During the May 2015 Board hearing, VA treatment visits, and the September 2015 VA examinations, the Veteran gave a history that he was diagnosed with polio at the age of 7. The Veteran further reported that he first experienced left leg pain and problems, including dragging his left leg which required him to wear a brace, since he was 7 years old. The Veteran was afforded a VA examination in September 2015. The VA examiner indicated that she reviewed the claims file, examined the Veteran, and opined that the Veteran's left leg disability, including muscular atrophy of the left lower extremity, clearly and unmistakably existed prior to his military service. The VA examiner explained that the Veteran has consistently reported a history of difficulty walking, regular falls, gait abnormalities severe enough to require the use of a brace, and weakness before he entered his military service. The examiner indicated that the Veteran reported that he has experienced these problems due to his polio, which he stated that he had since he was a child; thus, preexisting his military service. Moreover, the examiner indicated upon the Veteran's induction into military service, he failed to report his medical history and the examining physician clearly did not provide a through physical examination of the Veteran. The examiner stated that 23 days after the Veteran's enlistment, STRs document complaints of left leg problems and diagnoses of atrophy muscles, calf, and quadriceps musculature of the left lower leg. Moreover, the examiner explained that the atrophy noted on the Veteran's November 1966 STR is consistent with muscle atrophy as a result of polio. Furthermore, the VA examiner opined that the Veteran's left leg disability, including muscular atrophy of the left lower extremity, clearly and unmistakably was not permanently worsened during service beyond the natural progression of the disability. The examiner reasoned that the Veteran has consistently reported that prior to his military service, his muscular atrophy of the left lower extremity caused weakness and pain requiring a brace. The examiner explained that during the examination, the Veteran reported that his left leg symptoms have remained unchanged since he was initially diagnosed when he was 7 years old. Moreover, the VA examiner stated that the Veteran's 45 day military service was not long enough to worsen his muscular atrophy of the left lower extremity. The VA examiner indicated that the Veteran's "leg atrophy and weakness is naturally expected to progress over time as a result of polio regardless of activity and/or military service." As to the bilateral foot disability, the examiner opined that the Veteran's bilateral foot disability, including pes planus, clearly and unmistakably existed prior to his military service. The examiner reasoned that 14 days after the Veteran's enlistment, STRs document a diagnosis of bilateral flat feet. The examiner explained that the Veteran's participation in marching or exercises during his military service would have not caused his flat feet, especially in such a short time period. Additionally, the VA examiner opined that the Veteran's bilateral foot disability, including pes planus, clearly and unmistakably was not permanently worsened during service beyond the natural progression of the disability. The VA examiner reasoned that the Veteran's military service consisting of 45 days is not long enough to worsen foot problems, because when he entered service, his feet were already flat. The September 2015 VA medical opinions were based upon an examination of the Veteran, a review of his medical records, reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Moreover, the September 2015 VA examiner provided detailed rationales for her stated opinions. Thus, these opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). First, the Board finds that the evidence is clear and unmistakable that the Veteran's current left leg disability and bilateral foot disabilities existed prior to service. The Board finds persuasive that only 2 weeks following the Veteran's enlistment into his military service, the examining physician diagnosed muscular atrophy of the left lower extremity and bilateral flat feet. As pointed out by the September 2015 VA examiner, it is apparent that upon the Veteran's induction, the examining physician did not provide a thorough examination of the Veteran. Moreover, the Board finds persuasive and credible the Veteran's report and the September 2015 VA examiner's opinion that the Veteran's left leg and bilateral foot disabilities existed prior to service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service or such residual conditions (including atrophies following disease of the central or peripheral nervous system) with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that they preexisted service. See 38 C.F.R. § 3.303. Here, it is clear that the September 2015 VA examiner concluded that the pertinent findings so proximate to service clearly established that they did not have their onset in service. Second, the Board finds that the Veteran's left leg and bilateral foot disabilities were not aggravated during service beyond the normal progression of the disease. The medical evidence demonstrates that the Veteran's left leg and bilateral foot disabilities were not aggravated during service beyond the normal progression of the disease. For instance, although the Veteran's STRs document the Veteran's complaints of left leg pain, the Veteran reported that he had exhibited the same pain since he was diagnosed with polio as a child. Moreover, during the September 2015 VA examination, the Veteran reported that his left leg disability has remained unchanged since his diagnosed with polio as a child. As to his bilateral foot disability, there is no evidence to suggest that his disability worsened beyond the natural progression of the disease during his 45 days of his military service. The Board finds persuasive and credible the September 2015 VA examiner's opinion that the Veteran's left leg and bilateral foot disabilities were not aggravated during service beyond the normal progression of the disease. The examiner concluded that the 45 days of service was not long enough to result in increased pathology. This medical opinion is unrebutted. As such, the presumption of soundness is rebutted. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran has expressed his belief that his pre-existing left leg and bilateral foot disabilities were aggravated in service. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his pre-existing left leg and bilateral foot disabilities were worsened beyond the normal progression of the disease in service. Rather, it would require medical expertise to evaluate theses disabilities and determine whether the symptoms in service represented worsening of the disease beyond normal progression. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2015). There is no other evidence that the Veteran's left leg and bilateral foot disabilities either did not pre-exist service or were aggravated in service beyond the natural progression of the disease and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against findings that the Veteran's left leg and bilateral foot disabilities either did not pre-exist service or were aggravated in service beyond their natural progression. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a left leg and bilateral foot disabilities. The benefit-of-the-doubt doctrine is therefore not for application in this case and theses claims must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. B. Bilateral Knee Disability Here, the Veteran claims that his bilateral knee disability is related to his military service. See, e.g., Board hearing transcript dated May 2015. Essentially, the Veteran asserts that his pre-existing left leg disability caused his bilateral knee disability. The medical evidence of record includes a diagnosis of DJD of the knees. See, e.g., VA examination report dated September 2015 and VA treatment record dated November 2010. Thus, a current bilateral knee disability has been demonstrated. As indicated above, the Veteran's August 1966 enlistment examination report shows that a clinical evaluation of the Veteran's lower extremities was normal. STRs dated in November 1966 reveal that the Veteran was diagnosed with atrophy muscles, calf, and quadriceps musculature of the left lower extremity; and that he was discharged due to this disability. However, STRs show no complaints, treatments, or diagnosis of a knee disability. Post-service treatment records, at the earliest, dated in 2001 document the Veteran's complaints of knee pain and in 2002 a diagnosis of DJD of the knees. See SSA decision dated October 2003. The Veteran was afforded a VA examination in September 2015. The VA examiner diagnosed post-polio arthritis of the knees. The VA examiner indicated that she reviewed the claims file, interviewed the Veteran, and opined that the current disability is not caused or aggravated by his military service. The VA examiner reasoned that the Veteran's arthritis of the knees is due to his polio, based on x-ray evidence. The examiner stated that the Veteran's STRs are absent any compliant, treatment, or diagnosis of a knee problem. The examiner indicated that the Veteran's arthritis of the knees did not occur until many years following his discharge from his military service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection a bilateral knee disability. Initially, STRs are absent any notation of a knee problem or disability. The earliest evidence of record diagnosing arthritis of the knee was not until 2002, which is decades after the Veteran's separation from service. The Board finds persuasive that there is a significant gap of several decades between the Veteran's discharge from his military service and the first evidence of knee complaints and treatment, which also weighs against a finding that a knee disability was present during active military service or in the year immediately after service. As such, the evidence fails to show continuity of symptoms within one year from the date of separation from his military service. See 38 C.F.R. §§ 3.303(b); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service.). The Board finds that the September 2015 VA opinion is highly probative. The VA examiner provided a detailed rationale for her conclusion and explained that although the Veteran's arthritis of his knees were due to his polio, his bilateral knee disability did not develop until many years later. The Board finds that this opinion is probative because the examiner discussed the evidence, examined the Veteran, and provided a rationale consistent with the evidence of record. See Owens v. Brown, 7 Vet. App. 429, 433(1995) (opinion of a physician based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history). Accordingly, this opinion is well supported by all of the relevant evidence of record, STRs, post-service treatment records, and the Veteran's statements. Therefore, the Board finds that the September 2015 VA opinion is highly probative as to whether the Veteran's current bilateral knee disability is related to his military service. The Veteran claims pertinent symptoms in and since service. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that trauma may lead to degenerative changes is commonly known and, therefore, the Veteran's testimony that his degenerative changes in his knees are related to paine due to trauma incurred during the rigors of basic training have some tendency to make a nexus more likely than it would be without such an assertion. However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. However, the Board finds that the Veteran's assertions that he has experienced knee symptoms in and since service are outweighed by the evidence of record showing a lack of complaints or treatment for a knee disability until 2002 coupled with the September 2015 VA examiner's opinion, who was able to review the claims file as a while and has medical expertise. Therefore, the Board finds that the Veteran's opinion is outweighed. The Board has also weighed the probative value of the Veteran's lay statements regarding a nexus between his bilateral knee disability and his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran's disability is related to service-falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board finds the September 2015 VA examination report is more probative than the Veteran's statements. The examiner was able to review the overall record, including the Veteran's history and opinions. Moreover, as service connection for left leg disability is being denied herein, any claim of service connection for a bilateral knee disability as secondary to the left leg disability is without legal merit. See 38 C.F.R. § 3.310 (2015); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. III. Non Service-Connected Pension Benefits A veteran is entitled to nonservice-connected pension benefits if he is permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided that he has the requisite service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements to receive nonservice-connected pension benefits if such veteran served in the active military, naval or air service: (a) for 90 days or more during a period of war; (b) during a period of war and was discharged or released from such service for a service-connected disability; (c) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (d) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j). The Veteran's Report of Discharge (DD Form 214) reflects that he entered active service in October 1966 and that he was discharged from active service in December 1966. He does not have any other active service and this period of service totaled less than 90 days. The periods of war for purposes of establishing eligibility for nonservice-connected pension benefits are set forth in Section 3.2 of Chapter 38 of the Code of Federal Regulations. Pertinent to the Veteran's claim, Vietnam era (wartime) service is defined as "[t]he period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases." 38 C.F.R. § 3.2(f). Service in the Republic of Vietnam includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). In this case, the Veteran did not serve for the requisite 90 days to be entitled to basic eligibility for pension benefits. He was not discharged or released from service for any service-connected disability. As indicated above, a November 1966 Medical Board proceeding found that the Veteran was not qualified from service, due to weakness of the muscles and the quadriceps of the left lower extremity. Thereafter, the Veteran was discharged due to his weakness of the muscles and the quadriceps of the left lower extremity. The Board, herein, denied the Veteran's claim of entitlement to service connection for a left leg, bilateral feet, and bilateral knee disability. Thus, the Veteran was not discharged or released from service for any service-connected disability. The legal criteria in this case are clear and the pertinent facts are not in dispute. The Veteran did not have the requisite service during a period of war as defined by law or regulation. The Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of VA pension benefits. 38 U.S.C.A. § 7104(a) (West 2014); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). Where, as here, the law and not the evidence is dispositive, the Veteran's claim for nonservice-connected VA pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for a bilateral knee disability, including DJD, is denied. Entitlement to nonservice-connected pension benefits is denied. REMAND The Veteran contends that his acquired psychiatric disability is related to his military service. Specifically, he contends that during his military service he was mocked and laughed at due to his pre-existing bilateral leg disability. Also he contends that he has suffered from depression symptoms in and since service. See, e.g., Veteran's notice of disagreement dated April 2010. Pursuant to the May 2015 Board remand, in August 2015, the Veteran was afforded a VA examination to assess the nature and etiology of his acquired psychiatric disability. The August 2015 VA examiner provided a negative nexus between the Veteran's currently diagnosed acquired psychiatric disability and his military service. However, the VA examiner's opinion is, in part, due to VA treatment records that have not been associated with the claims file. For example, the VA examiner indicated that the Veteran has sought VA treatment for his psychiatric symptoms since 2002; nevertheless, VA treatment records that are associated with the claims file begin in 2009. Therefore, the Board finds that a remand is necessary to obtain an addendum opinion and obtain VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain records of treatment that the Veteran may have received at any VA health care facility received since 2002 through 2008 and since December 2012. All such available documents should be associated with the claims file. 2. Then, the claims folder should be referred back to the VA examiner who provided the September 2015 VA opinion concerning the Veteran's claim for an acquired psychiatric disability, including depression with anxiety. The VA examiner should offer an addendum medical opinion based on a thorough review of the evidence of record. A copy of this remand must be made available to the examiner for review in connection with the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the VA examiner. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) had its clinical onset during military service or is otherwise related to service. In rendering the above opinion, the examiner must comment on (i.) the Veteran's assertions that he has experienced depression symptoms in and since service because he was mocked and laughed at due to his pre-existing bilateral leg disability during his military service and (ii.) buddy statement dated April 2009. The VA examiner should also address the Veteran's lay testimony regarding his symptomatology since service. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. The VA examiner must provide a rationale for the opinion given. The VA examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the VA examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs