Citation Nr: 18142713 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-41 033 DATE: October 16, 2018 ORDER Entitlement to service connection for burns is denied. Entitlement to non-service connected pension benefits is denied. REMANDED Whether new and material evidence has been received to reopen a claim for service connection for back pain is remanded. Whether new and material evidence has been received to reopen a claim for service connection for hypertension is remanded. Whether new and material evidence has been received to reopen a claim for service connection for amnesia is remanded. Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia is remanded. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is remanded. Whether new and material evidence has been received to reopen a claim for service connection for bronchitis is remanded. Whether new and material evidence has been received to reopen a claim for service connection for fainting spells is remanded. Entitlement to service connection for respiratory disease is remanded. Entitlement to service connection for joint pain is remanded. Entitlement to service connection for neck pain is remanded. Entitlement to service connection for visual impairment is remanded. Entitlement to service connection for depression is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran suffered burns from a house fire in May 2006. 2. The Veteran did not have active service during a period of war. CONCLUSIONS OF LAW 1. The criteria for service connection for burns are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to non-service-connected pension benefits have not been met. 38 U.S.C. §§ 101(2), 1521, 5107(a); 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Army Reserve with active duty from March 1976 to March 1978. These matters are on appeal from November 2009 and August 2011 rating decisions and an August 2011 administrative decision. Regarding the claim for service connection for burns and service connection for a respiratory disease, the RO characterized the issues as whether new and material evidence had been received since a denial of the issues in November 2009. However, the Veteran submitted another claim for service connection for these issues in March 2010, or within one year of November 2009. The Board construes this filing as disagreement to the November 2009 rating decision and for this reason, the Board has characterized the claims as entitlement to service connection for burns and entitlement to service connection for a respiratory disease. Service connection-burns Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). The Veteran seeks service connection for burns. In this case, the evidence reflects that the Veteran suffered third degree burns to his face, legs, arms, and right hand in a house fire in May 2006. The first evidence in the record of any burn injuries are private treatment records from UNC Hospital in June 2006, which indicate that the Veteran sustained third degree burns in a house fire in May 2006. VA treatment records from June 2006 also note that the Veteran suffered burns over most of his body from a house fire about a month ago. There is no prior evidence that the Veteran suffered from burns, or any injuries from burns. The service treatment records of record are negative for any treatment of burn injuries in service. In addition, other than indicating that on a March 2010 VA 21-526, Veteran’s Application for Compensation and/or Pension that his disability began in March 1981, the Veteran has not raised any specific contentions as to why he believes his burn injuries are related to service. There are no medical records prior to the fire in 2006 which indicate that the Veteran suffered any injuries from burns. In addition, there is no evidence of a relationship between the Veteran’s burn injuries suffered in 2006 and service, and neither he nor his representative has provided evidence of such. Thus, the preponderance of the evidence is against a finding that the Veteran’s burns are related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for burns must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Non-service connected pension benefits VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from non-service-connected disabilities which are not the result of willful misconduct. 38 U.S.C. § 1521(a). To be eligible for non-service connected pension, a veteran must have served in the active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war with discharge or release from such service for a service-connected disability; (3) for a period of 90 consecutive days or more when 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. § 1521(j); see also 38 C.F.R. § 3.3. The term “active military, naval, or air service” includes (a) active duty; (b) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty; and (c) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from certain cardiovascular events. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state, and members of a Senior Reserve Officers’ Training Corp (ROTC) Program when ordered to such duty for the purpose of training or practice cruise under chapter 103 of title 10 U.S.C. 38 U.S.C. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3), (4). As is relevant to this claim, VA currently recognizes the following as periods of war: for the Vietnam War, 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, and the period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. See 38 C.F.R. § 3.2. In this case, the Veteran contends that he has the requisite wartime service. In support of this contention, the Veteran states that he served in the ROTC from 1971 to 1975. Thereafter, he was commissioned as a Second Lieutenant in the United States Army from March 1976 to March 1978. Based upon the foregoing, the Veteran contends that his ROTC service included service during the Vietnam War. Service personnel records note that the Veteran was enrolled in a ROTC program while attending Tuskegee Institute. His DD Form 214 shows that he had active duty service from March 1976 to March 1978, with no prior active duty service but two months, twenty-three days of prior inactive service. The Board notes that the DD Form 214 is specifically listed in 38 C.F.R. § 3.203(a) as a type of document that VA may accept as evidence of service “without verification from the appropriate service department.” Additionally, the Board finds that the DD Form 214 of record is sufficient to establish length, time, and character of service. In light of this documentation, the Board must find that the Veteran does not have the qualifying wartime service necessary to be eligible for nonservice-connected pension benefits. There is no evidence to indicate that the Veteran has the required 90 days of active service during the Vietnam War. 38 C.F.R. § 3.3. The Board adds that the only exception to the 90-day requirement is for the Veteran to have been discharged for a service-connected disability. However, as indicated above, the Veteran did not have active duty service during a period of war. In addition, the Veteran’s DD Form 214 includes nothing that would indicate he was discharged for anything other than expiration of active service. Service personnel records show that the Veteran was ordered to active duty effective March 1976 for a period of two years. The record shows that Veteran was discharged from active duty after two years and transferred into the Army Reserve. There is no evidence that suggests that he was separated for a physical disability. Thus, the Veteran does not qualify for the exception. 38 U.S.C. § 1521(j). Unfortunately, despite the Veteran’s honorable service to his country, he is not shown to have had the wartime service needed to entitle him to the nonservice-connected pension benefits he seeks. Consequently, the claim for nonservice-connected pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Regarding the remaining claims on appeal, a review of the claims file reveals that the Veteran’s service treatment records may be incomplete. It does not appear that the Veteran’s Reserve records were requested. To ensure a complete record, on remand, the AOJ should attempt to obtain the Veteran’s complete Reserve service treatment and personnel records. As any missing records may include potentially relevant information to the Veteran’s claims, an attempt must be made to obtain these records on remand. The Veteran has contended that he had additional Reserve service since March 1978. While some service personnel records have been obtained, it remains unclear as to whether the Veteran had any additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) during his subsequent Reserve service. Verification of these dates are relevant, as the Veteran has claimed that many of the disabilities on appeal began while in Reserve service or within one year after leaving Reserve service. Therefore, verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished on remand. The record reflects that the Veteran has been incarcerated since 2006. In June 2010 and July 2010, the RO attempted to obtain treatment records from Donaldson Correctional Facility, where the Veteran had been incarcerated. It does not appear that a response was received. However, in March 2011, the Veteran again requested that VA obtain treatment records from Donaldson Correctional Facility with regard to issues on appeal. As it does not appear from the record that another request was made, on remand, the Board finds that the AOJ should request that the Veteran be provided an appropriate authorization for any medical records pertaining to relevant medical treatment for his claimed conditions from Donaldson Correctional Facility and Bullock Correctional Facility, the facility in which he is currently incarcerated. Finally, concerning the issue of entitlement to TDIU, because a decision on the remanded issues above could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Take the appropriate steps to obtain any medical treatment records from the Donaldson Correctional Facility and the Bullock Correctional Facility, to include securing any necessary releases from the Veteran. All efforts to obtain these records must be documented in the claims file and the Veteran appropriately notified if unable to obtain identified records. 38 C.F.R. § 3.159(c) and (e). 2. Obtain the Veteran’s complete service personnel and treatment records, to include all documents pertaining to his service in the Army Reserve. Verify all active duty, ACDUTRA and INACDUTRA dates for alleged service in the Army Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel