Citation Nr: 1801697	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-32 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to basic eligibility for VA nonservice-connected pension benefits.

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to service connection for right lower extremity peripheral neuropathy.

4.  Entitlement to service connection for left lower extremity peripheral neuropathy.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel
INTRODUCTION

The Veteran had active duty service in the U.S. Navy from January 1981 to April 1981.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.

The issues of entitlement to service connection for an acquired psychiatric disorder and left and right lower extremity peripheral neuropathy 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 did not have any active military, naval, or air service during a period of war.


CONCLUSION OF LAW

The Veteran does not meet the threshold service requirement for eligibility for nonservice-connected pension benefits.  38 U.S.C.A. §§ 101, 1521 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.203, 3.314 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  However, the VCAA has no application where, as here, under governing law (38 U.S.C.A. § 1521) the appellant is not eligible for the benefit sought, as the service department records show that he did not have any active military, naval, or air service during a period of war.  No amount of notice or assistance would enable him to obtain the benefit sought.

Legal Principles and Analysis

Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability that is not the result of willful misconduct, provided that they have the requisite service.  38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b).  A Veteran meets the necessary service requirements if he or she served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) 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); 38 C.F.R. § 3.3(a).

The Vietnam era and the Persian Gulf War are included among recognized periods of war.  38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2.  The Vietnam era is defined as: (A) the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a Veteran who served in the Republic of Vietnam during that period; and (B) the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases.  38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f).  The Persian Gulf War is defined as the period beginning on August 2, 1990 and ending on the date thereafter prescribed by Presidential proclamation or by law.  38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i).

VA's determination of whether a claimant's service meets these threshold requirements is usually dependent upon service department records verifying the character of a claimant's service.  38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530 (1992).

In the current case, the Veteran claims entitlement to nonservice-connected pension benefits based upon active service from January 1981 to April 1981, which is reflected in his DD-214.  He has not alleged that he had active service at any other time.  The period of the Veteran's service falls squarely within the interval following the Vietnam era and before the Persian Gulf War.  The Veteran's own statements, as well as official service department records, do not support that he had active service during a period of war.  As service during a period of war is an essential element of establishing basic eligibility for nonservice-connected pension benefits, further discussion of whether the Veteran meets any other criteria outlined in 38 U.S.C.A. § 1521(j) is unnecessary.

In sum, the Veteran does not meet the threshold service requirement for basic eligibility for nonservice-connected pension benefits; he did not serve in active military, naval, or air service during a period of war.  38 U.S.C.A. § 1521 (j); 38 C.F.R. § 3.3(a).  As service department records do not show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Basic eligibility for VA nonservice-connected pension benefits is denied.




REMAND

As to service connection for an acquired psychiatric disorder, the Veteran stated at a June 2014 Decision Review Officer (DRO) hearing that his contention was that he has a mental disorder because during service, someone put a hallucinogen into a soft drink without his knowledge which resulted in a severe reaction and ultimately a mental disorder.  There is ample documentation in the service treatment records of an in-service incident where the Veteran was admitted to a hospital for a period of time for disorientation and loss of memory and where various diagnoses were rendered, including adjustment reaction with hysterical traits and psychogenic amnesia.

Thereafter, although an April 1981 separation examination was normal, a May 1981 private treatment record shows an impression of probable psychosis, possible depression, and rule out anxiety; a June 1981 private treatment record indicates that the Veteran may have psychosis and/or depression; an October 1981 private treatment record suggests that the Veteran has stress-related disorder/psychosomatic disorder; a January 1982 private treatment record notes that the Veteran suffers from psychogenic amnesia and conversion disorder which occurred in context of personality style marked by dependent, hysterical and impulsive features but not dependent personality disorder or histrionic personality disorder.  Subsequent treatment records tend to emphasize that the Veteran's symptoms are the result of a personality disorder.  In this regard, a March 1990 record shows no Axis 1 diagnosis but an Axis 2 diagnosis of paranoid personality disorder with strong passive aggressive and hostile disorder.  Similarly, although a November 1991 record shows a diagnosis of dysthymic disorder rule-out posttraumatic stress disorder and personality disorder, February 2001 and November 2007 records again show no Axis 1 disorder but an Axis 2 personality disorder.

The evidence also suggests that many of the above symptoms and/or diagnoses are related to nonservice-connected porphyria or pseudohypoparathyroidism.  In this regard, March 1989 and June 1993 treatment records suggest a link between porphyria and mental disorders and in June 2014, the Veteran submitted a document indicating that it is common for porphyria to result in agitation, confusion, combativeness and other acute neuropsychiatric features.  In June 2014, the Veteran also submitted a letter from Dr. Hersh who stated that porphyria and pseudohypoparathyroidism can cause mental issues.  Significantly, however, a June 1992 Board decision denied service connection for porphyria and pseudohypoparathyroidism and there are currently no pending claims to reopen service connection for these disorders.

The Board further notes that the Veteran's present theory of how an acquired psychiatric disorder is related to service is nearly identical to prior claims for service connection porphyria and a disorder manifested by blackouts, the latter of which was also denied by the Board in June 1982.  See June 1992 Board decision ("He believes that [porphyria] was precipitated by his being fed barbiturates in a soft drink in service without his knowledge or consent"); June 1981 claim ("Was slipped something in my Pepsi on 3/25/81 which...made me dizzy and I passed out on a stairs hitting my head, causing me to have amnesia [and now] some days I pass[] out 4 and 5 times a day").  Nevertheless, the claim for service connection for an acquired psychiatric disorder is distinct from these prior claims for blackouts, porphyria and pseudohypoparathyroidism and, as such, even though this theory did not support these earlier claims, that will not prevent the Veteran from attempting to substantiate the current claim for service connection.  In this regard, although there is some question as to whether the Veteran has a current diagnosis of an acquired psychiatric disorder, the number of differing psychiatric diagnoses during and immediately following service raise the question as to whether an acquired psychiatric disorder was incurred during service or may be presumed to have been so incurred.  Accordingly, the Board finds that there is sufficient evidence to warrant obtaining a VA examination which thus far has not been obtained.

As to service connection for right and left lower extremity peripheral neuropathy, the Veteran also appears to relate this to the same in-service incident described above.  See June 2014 DRO hearing.  As above, there is also evidence indicating that peripheral neuropathy, or similar type symptoms, result from nonservice-connected porphyria.  An August 1988 private treatment record shows that Dr. Hersh stated that porphyria may result in peripheral nerve involvement; a June 1993 record indicates that metabolic disorders have resulted in features of peripheral neuropathy; a May 2005 record shows that certain drugs can precipitate symptoms of peripheral neuropathy in people with porphyria; and the June 2014 document explaining general information about porphyria states that clinical features include neurologic symptoms like peripheral neuropathy.

As above, while this evidence complicates the question of the etiology of any current lower extremity peripheral neuropathy, there is nonetheless evidence in the service treatment records supporting a direct incurrence theory.  In this regard, a March 1981 record shows complaints of right lower extremity pain and an April 1981 craniotomy check sheet indicates that there was some weakness noted in the Veteran's left and right lower extremities.  Accordingly, the Board finds that a VA examination should also be obtained in connection with these claims.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination(s) to address the etiology of any current acquired psychiatric disorder and any current lower extremity peripheral neuropathy.  All necessary tests should be conducted.  The claims file must be sent to the examiner(s) for review.

The examiner should first identify all current acquired psychiatric disorders extant during the pendency of the claim.  Then, for each disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that it is related to the Veteran's active duty service.

The examiner should also indicate whether the Veteran has had any left or right lower extremity peripheral neuropathy during the pendency of the claim.  If so, for each disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that it is related to the Veteran's active duty service.

A complete rationale should accompany any opinion provided.

2.  After completion of the above, readjudicate the claims.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should 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 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 2014).




______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs