Citation Nr: 1802841 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 16-23 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for ulcerative colitis, for accrued benefits purposes. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), for accrued benefits purposes. 3. Entitlement to service connection for diabetes mellitus, type II, for accrued benefits purposes. 4. Entitlement to special monthly compensation based on the need for aid and attendance. 5. Entitlement to a nonservice connected pension based on the need for aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Army from May 1960 to May 1962. The Veteran passed away in August 2013 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The issues of entitlement to service connection for ulcerative colitis, GERD, and diabetes mellitus type II, and entitlement to a special monthly pension based on the need for aid and attendance, each for accrued benefits purposes, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had active service from May 1960 to May 1962. 2. The Veteran did not serve in the Republic of Vietnam during his active service. 3. The Veteran did not have wartime service. CONCLUSION OF LAW The criteria for basic eligibility for nonservice-connected pension benefits have not been satisfied. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The VA General Counsel has held that the notice and duty to assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. VAOPGCPREC 5-2004 (June 23, 2004); VAOPGCPREC 2-2004 (March 9, 2004). Thus, no discussion of the VCAA is necessary. Nonservice-Connected Pension Law and Analysis The claimant maintains that she is entitled to a nonservice-connected pension based on her husband's active duty service. As a threshold requirement for nonservice-connected pension benefits, the Veteran must have had wartime service. Specifically, in order for the claimant to be entitled to pension benefits, the Veteran must have served on active duty for 90 days or more during a period of war, or commencing or ending during a period of war. 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). Specifically, per the regulation, Vietnam era (wartime) service is defined as follows: "Vietnam era. The 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). In this case, the Veteran's DD 214 reflects that his active service was from May 1960 to May 1962, but does not reflect service in the Republic of Vietnam. As noted above, the Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. There is no evidence in the record, however, that the Veteran served in Vietnam. The Veteran and his spouse have both endorsed that his overseas service was spent in Germany, and neither has alleged service in the Republic of Vietnam. As the Veteran did not serve in the Republic of Vietnam, the Veteran's May 1960 to May 1962 period of active service cannot be considered as during the Vietnam era. If a Veteran did not serve in Vietnam, the Vietnam era is defined as beginning on August 5, 1964, which is after the Veteran's active service ended in October 1963. As a result, the Veteran's active service does not qualify as service during a period of war as defined by applicable law and regulation. The Board notes that the Veteran had a period of Reserve service following his active duty service, until May 1966. While the Veteran had Reserve service during the Vietnam era, the Board is reminded that in order for a Veteran to be entitled to pension benefits, the Veteran must have served on active duty for 90 days or more during a period of war, or commencing or ending during a period of war. 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). Pursuant to 38 C.F.R. § 3.6, active duty is defined as the following: full time duty in the Armed Forces, other than active duty for training; full-time duty (other than for training purposes) of the Regular or Reserve Corps of the Public Health Service; full-time duty as a commissioned officer of the Coast and Geodetic Survey or its successor agencies; service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a mid-shipman at the United States Naval Academy; attendance at the preparatory schools of the military; authorized travel to or from such duty or service; and a person discharged or released from a period of active duty during the period of time immediately following the date or such discharge or release from such duty determined by the Secretary concerned to have been required for him or her to proceed to his or her home by the most direct route, and in all instances, until midnight of the date of such discharge or release. Therefore, pursuant to 38 C.F.R. § 3.6, active duty does not include Reserve service, and, moreover, does not include any periods of active duty for training. See 38 C.F.R. § 3.6 (b) (defining active duty as "Full-time duty in the Armed Forces, other than active duty for training"). Thus, even considering the Veteran's Reserve service, qualifying wartime service as a Vietnam era veteran has not been established. The Board, of course, is sympathetic to the claimant, but VA is bound by information that the service documents contain. Venturella v. Gober, 10 Vet. App. 340, 341-342 (1977); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Moreover, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also, Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In conclusion, although the Board does not discount or diminish the Veteran's honorable service, the Veteran did not have any qualifying wartime service, and basic eligibility for nonservice-connected pension benefits is not established. Since the claimant's claim fails because of the absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). ORDER Entitlement to a non-service connected pension is denied. REMAND Service Connection Claims The claimant maintains that she is entitled to service connection for the Veteran's claimed disabilities of ulcerative colitis, GERD, and diabetes mellitus, type II, for accrued benefits purposes. A review of the record reflects that the Veteran was not afforded the benefit of a VA examination for these claimed disabilities. The Board notes that in a May 2012 statement in support of claim, the claimant stated that "[i]t is her belief that the beginnings of these medical conditions occurred during [the Veteran's] years in the army." She stated that the Veteran was involved in a jeep accident, washed dishes for his entire company by himself, which led to his having to sleep for 20 hours to recover, and fell into water during a march and had to continue marching in wet clothing. Additionally, she stated that the Veteran was attacked by a German man while stationed in Germany. Furthermore, in an October 2012 statement of support of claim, the Veteran stated that he believed his ulcerative colitis, diabetes mellitus type II, and GERD had their origins while in the military due to his jeep accident and falling into water while on a march. The Board further notes that the April 2012 rating decision and subsequent de novo review did not discuss these lay contentions, but rather, relied entirely on lack of documentation in the Veteran's service treatment records and lack of documentation within one year of leaving service. Here, the Board finds that these matters should be remanded for VA clinicians to provide medical opinions as to whether the claimed disabilities are as likely as not related to the Veteran's service. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Special Monthly Compensation As the outcome of the claim for entitlement to special monthly compensation based on the need for aid and attendance for accrued benefits purposes could be affected by the results of the remand for the service connection claims, it is inextricably intertwined. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, remand is also warranted with regard to the issue of entitlement to an initial compensable rating for a left shoulder disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records. All records obtained must be associated witht the claims file. 2. After, and only after, completion of step one above, arrange for an appropriate VA healthcare provider(s) to review the Veteran's claims file and offer an opinion as to the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's GERD had its onset during active service or is otherwise related to service. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's ulcerative colitis had its onset during active service or is otherwise related to service. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diabetes mellitus, type II, had its onset during active service or is otherwise related to service. All opinions provided for each of the disabilities examined must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. All lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the claimed conditions. 3. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the claimant a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs