Citation Nr: 1804600	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  10-39 613	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for a right leg or knee disability (right leg disability). 

2. Entitlement to nonservice-connected pension benefits. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from July 30, 1969 to September 16, 1969.

These matters come before the Board Veterans' Appeals (Board) on appeal of a rating decision in July 2009 of Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

These claims were previously remanded by the Board in May 2013 for additional development to include an examination and medical opinion. The development was completed and jurisdiction has returned to the Board. 


FINDINGS OF FACT

1. A right leg disability was noted on entry and was not aggravated beyond the natural progression during service.

2. The Veteran was not permanently and totally disabled from a disease or injury incurred or aggravated in line of duty; therefore, the Veteran's 77-day period of service cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for nonservice-connected pension benefits.


CONCLUSIONS OF LAW

1. The criteria for service connection for a right leg disability have not been met. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017)

2. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection-Right Leg Disability

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The law further provides that, if a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service incurrence for that disorder, but a veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In this type of case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for a right leg disability. The Board finds as fact that the Veteran's right leg disability was noted on entry and was not aggravated by his military service. The reasons follow.

During the Veteran's May 1969 pre-induction medical examination, it was noted that the Veteran had a history of a cartilage tear of the right knee one year prior to service. As the Veteran had a history of flare ups with his knee disability, but had not had any recent issues with his knee, he was allowed to enlist. However, in August 1969, a little over two months after enlisting, the Veteran went to the military orthopedic clinic claiming bilateral knee pain. After a full examination, it was determined that the Veteran's induction should be voided, as he was physically unfit due to his pre-existing knee disabilities, which included a deformity of the knee joint diagnosed as high riding patella with recurrent subluxation of the right knee, along with chondromalacia patella of right knee, as well as left knee complications (only the right knee is currently before the Board). The Veteran was discharged from service via a medical evaluation board in September 1969. 

On appeal at this time, the Veteran claims that his right leg disability was aggravated by his military service. Although the Veteran underwent treatment of the right leg while in service, the evidence weighs against the finding of aggravation for the right leg disability. 

After the Board's May 2013 remand, the Veteran was afforded a March 2015 VA examination and medical opinion on whether his right leg disability was aggravated by his military service as it was already determined that the Veteran's right leg disability predated his military service by the medical evidence of record. The examiner found that the Veteran's right leg disability was not aggravated beyond its normal progression by service. The examiner added that the Veteran had experienced an exacerbation of his condition during service and not an aggravation. This medical conclusion was decided after a full examination and review of the Veteran's service treatment records. Therefore, the Board accords high probative value to this medical opinion and finds that the evidence of record is against a finding of in-service aggravation. 

The Veteran himself, during treatment while in service had reported that his knee had given way 10-15 times during the last two years, which shows that he was experiencing symptoms before entering service. During the appeal, the Veteran stated a fall in service while marching was a potential event that caused aggravation but had also stated that the fall affected his left knee only. Thus, the Veteran's statements tend to show that the Veteran's right knee was not aggravated during service, as determined by the March 2015 examiner. The Veteran, in his statements throughout the appeal period, discusses pain for his right leg disability while in service due to training; however, most of his contentions as far as aggravation during service involve his left leg. When discussing the bases for which he can no longer work in his social security application in July 2007, the Veteran focused mainly on his loss of vision, left knee disability and low back pain. In the VA Form 9, Appeal to the Board, received in August 2015, the Veteran wrote that his right knee was doing well with little pain, but discussed in great detail the trauma to his left leg from and since service. This further supports the finding that there was no permanent aggravation of the right leg in service.

For all the above reasons, the Board finds that the weight of the evidence is against a finding that the Veteran's right leg disability was aggravated by his military service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a right leg disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  

III. Nonservice-Connected Pension

The Veteran also seeks entitlement to nonservice-connected pension benefits. 

VA law authorizes the payment of a nonservice-connected 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/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274 (2017), and does not have an annual income in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. §§ 3.3, 3.23 (2017). 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. § 3.3. 

As a threshold requirement for nonservice-connected pension benefits, the Veteran must have had wartime service. Specifically, in order for a veteran to be entitled to pension benefits, the veteran must have served in the active military, naval or air service 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). The specific dates encompassing the "periods of war" are defined by statute. 38 U.S.C. § 101(11) (2012). 

An exception for the 90-day service requirement is carved for veterans who are released before having served 90 days, for a non-presumption based service-connected disability or at the time of discharge have a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 38 C.F.R. § 3.3(a)(2)(iii) (2017). 

A Veteran is considered to be permanently and totally disabled if he is: (1) a patient in a nursing home for long-term care because of a disability; or (2) disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from either (i) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or (ii) any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 U.S.C. § 1502(a); 38 C.F.R. § 3.3(a)(3)(vi)(B). 

Here, although the Veteran served in wartime during the Vietnam era, the evidence of record shows that he does not have 90 days active duty service. The Veteran served from July 30, 1969 to September 16, 1969, which is 77 days of service and falls short of the 90-day requirement for entitlement to nonservice-connected pension benefits. 

The Veteran may still be granted the pension benefits if the basis for his discharge is a service-connectable disability. The Veteran was discharged from service early due to his pre-existing bilateral knee disabilities, which have not shown by medical evidence to have been aggravated by service. As these disabilities are not service connected, the Veteran does not qualify for the 90-day exception under 38 C.F.R. § 3.3(a)(2)(iii). 

Therefore, as service connection has not been awarded for any disability during his period of service, the Veteran is not eligible for nonservice-connected pension benefits. In other words, the evidence does not support a finding that the Veteran became disabled from a disease or injury incurred or aggravated in the line of duty. Entitlement to nonservice-connected pension benefits is denied.


ORDER

Entitlement to service connection for a right leg disability is denied. 

Entitlement to nonservice-connected pension benefits is denied. 




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs