Citation Nr: 1800595	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  15-00 149A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUES

1.  Entitlement to service connection for a low back condition.

2.  Entitlement to service connection for a right lower leg fracture.

3.  Entitlement to non-service-connected pension benefits.


REPRESENTATION

Appellant represented by:	Karen Y. Vicks, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1975 to November 1976 with the United States Army.  He also had active duty for training from September 1972 to March 1973 with the Delaware Army National Guard. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The Wilmington, Delaware RO certified this case.   

The Veteran testified at an April 2017 videoconference hearing before the undersigned.  A copy of the transcript has been associated with the claims file.

The issues of entitlement to service connection for a low back condition and for a right lower leg fracture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran does not have qualifying wartime service for non-service-connected pension purposes.


CONCLUSION OF LAW

The criteria for non-service-connected pension benefits have not been met.  38 U.S.C. § 1502, 1513, 1521 (2012); 38 C.F.R. § 3.3, 3.23, 3.274, 3.277, 3.340 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

With respect to the claim decided, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Analysis

VA will grant non-service-connected disability pension benefits to a wartime veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a Veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, 3.275, and has an annual income that does not exceed the applicable maximum annual pension rate (MAPR).  38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23.

The term "active military, naval, and air service" is defined by statute, and includes active duty and any period of active duty for training which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.  38 C.F.R. § 3.6.  The Veteran has two periods of service, one from September 1972 to March 1973 with the Delaware Army National Guard and one from May 1975 to December 1976 with the United States Army. As the first period of service was with the National Guard and for active duty for training, it does not qualify as active military service as defined by statute.  However, the second period of service does qualify as active military service.

The term "period of war" is defined by statute, and includes the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. The Vietnam War period is from February 28, 1961, to May 7, 1975, for those who served in Vietnam, and from August 5, 1964 to May 7, 1975 for those who did not serve in Vietnam.  38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f).  

The Veteran's active service occurred after the Vietnam War and prior to the Persian Gulf War.  The Board acknowledges that the Veteran reported at the April 2017 hearing that he was assigned to active duty in April 1975, which would fall within the Vietnam War period.  However, military personnel records consistently show that the Veteran served on active duty from May 1975.  While the Order to Active Duty is dated April 1975, the effective date of active duty is May 1975.  

As the Veteran does not have qualifying wartime service, entitlement to non-service-connected pension benefits is not warranted as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that in cases where the law is dispositive, the claim should be denied because of the absence of legal merit).


ORDER

Entitlement to non-service-connected pension benefits is denied.


REMAND

The March 2012 VA examination is inadequate to make an informed decision on the Veteran's claim for entitlement to service connection for a low back condition.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The March 2012 VA examiner addressed only the Veteran's diagnosis of lumbar spine degenerative joint disease.  The record shows that the Veteran has been diagnosed with arthritis of the sacroiliac joint and lumbar spondylosis.  See March 2012 VA treatment record, June 2013 VA treatment record.  Further, it appears that the examiner did not address the Veteran's lay statements that he has had low back pain since leaving service.  Hence, a new VA examination is warranted.      

Additionally, the RO's development of the claim does not satisfy VA's duty to assist the appellant in obtaining records that are in the custody of a Federal department or agency.  See 38 C.F.R. § 3.159(c)(2).  At the April 2017 hearing, the Veteran reported receiving Social Security Disability benefits for his right leg.  These records have not been associated with the claims file.  As the records may be pertinent to the claim, further development is required.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain all relevant and outstanding VA and private medical records pertaining to the Veteran's low back condition and right lower leg fracture.  If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The Veteran must then be given an opportunity to respond.

2.  Obtain from the Social Security Administration any records associated with the Veteran's claim of entitlement to disability benefits, to include any decision documents prepared by a Social Security Administrative Law Judge. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any Federal records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond.

3.  Thereafter, schedule the Veteran for a VA examination to address the nature and etiology of any diagnosed low back condition, to include lumbar spine degenerative joint disease, arthritis of the sacroiliac joint, and lumbar spondylosis.  The examiner must review the VBMS and Virtual VA files, including the Veteran's lay statements pertaining to his low back pain.  A full and complete rationale must be provided for any and all opinions provided.  

4.  The Veteran is hereby notified that it is his responsibility to report for all examinations, and to cooperate in the development of his claim.  He is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address.  It should also be indicated whether any notice sent was returned as undeliverable.

5.  After the development requested has been completed the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that each examiner documented his/her consideration of Virtual VA.  If any report is deficient in any manner, the RO must implement corrective procedures at once.

6.  After completing any additional development deemed necessary, readjudicate the claims.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, he must be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  

The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs