Citation Nr: 18148576 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-16 653 DATE: November 7, 2018 ORDER Entitlement to non-service-connected disability pension is denied. REMANDED Entitlement to service connection for pharyngitis (claimed as sore throat) is remanded. FINDING OF FACT The Veteran’s service was not during a period of war. CONCLUSION OF LAW The criteria for basic eligibility requirements for nonservice-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1980 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a Board hearing on his May 2015 VA Form 9, he subsequently withdrew his hearing request in October 2015 correspondence. Entitlement to non-service-connected disability pension The Veteran contends that he is entitled to non-service-connected disability pension benefits based on his military service. He states he was advised by a VA representative in April 2013 that he was approved for compensation benefits related to his service and would receive $2,000.00 a month. VA non-service-connected pension benefits are payable to a veteran who is permanently and totally disabled from non-service-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements if he served in active military, naval, or air service: (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. § 1521(j); 38 C.F.R. § 3.3(a)(3). In the present case, the Veteran served from August 1980 to August 1984. No days during that period have been designated by Congress as a period of war. See 38 C.F.R. § 3.2. Rather, this period falls between the Vietnam era, which ended May 7, 1975, and the Persian Gulf War, which stated August 2, 1990. Id. As the Veteran’s service did not fall within a period of war, basic eligibility for nonservice-connected pension benefits is not met. As to the Veteran’s contention that he was told he was approved for benefits in the amount of $2,000.00 monthly, there is nothing associated with the claims file in writing to this effect. Unfortunately, it appears the Veteran was given faulty advice, and VA is not bound by such statements. See Owings v. Brown, 8 Vet. App. 17, 23 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 2471, 110 L.Ed.2d 387 (1990)); see also Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). In summary, based on the available evidence regarding the Veteran’s service, the provisions of 38 C.F.R. § 3.3 are dispositive in this matter. As the Veteran did not have the type of qualifying service required to confer eligibility for VA pension benefits, his claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to service connection for pharyngitis (claimed as sore throat) is remanded. The Veteran contends that he has a sore throat condition that began in service in October 1982. The Veteran has not provided any specific statements as to why his current sore throat condition started on this particular date during his active duty, and his available service treatment records do not contain any treatment on that date. However, there are treatment records showing he was treated for upper respiratory infections multiple times, including one in January 1981 for which he complained of symptoms including a scratchy throat. Furthermore, when the Veteran came into VA to establish care in April 2013, the Nurse Note shows he reported that his throat was raw and his voice scratchy, which problem he has had for years and he takes Chloraseptic for. However, the physician who evaluated the Veteran neither noted such problems on the review of systems nor examined him for such complaints. On follow-up in April 2014, the Veteran reported to his primary care physician that he has had pharyngitis for years and he stated that he thinks the Navy caused his sore throat and blamed it all on the paint that the Navy forced him to use. He related that he has to have food choices that do not aggravate his throat. He was assessed to have pharyngitis and cultures were taken of his throat to test for bacterial and yeast infections. However, according to a letter sent to the Veteran, those tests were negative for any significant findings and that he was thought to probably have had a viral infection as no dangerous bacteria were found. The April 2013 Primary Care note indicates the Veteran received his routine care through a private physician. In addition, on his VA Form 9, the Veteran appeared to suggest a Dr. Knapp may have relevant treatment records and that VA failed to contact this physician. However, it does not appear that the Veteran has provided VA with adeuqate identifying information for Dr. Knapp, to include a signed authorization for VA to obtain that physician’s records. A remand is required to allow VA to attempt to obtain authorization and request these records. The Veteran should also be advised that it is important for him to provide VA with all records of treatment, not just VA records, relating to his claimed disability, including records showing onset of symptoms and/or treatment, and a diagnosis of his disability. The Board notes that the other physician identified by the Veteran in his VA Form 9, Dr. Farmer, is his VA primary care physician and those records from April 2013 through September 2014 are associated with the claims file. Therefore, those records were obtained and considered. However, as the Board is remanding, those records should be updated for any new records. Finally, the Board cannot make a fully-informed decision on the Veteran’s claim because no VA examiner has opined whether the Veteran has a current chronic throat disability that may be related to any injury, disease or event that was incurred during his active military service.   The matter is REMANDED for the following action: 1. Ask the Veteran to complete VA Form 21-4142 for the Veteran’s private medical care providers who have treated him for his sore throat disorder to include his private primary care physician and Dr. Knapp. Make two requests for the authorized records from each identified private medical care provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s relevant, outstanding VA treatment records, including for the period from October 2014 to the Present.   3. After the above development is complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any throat disorder (claimed as “sore throat”). The examiner must opine whether it is at least as likely as not that any identified chronic throat disorder is related to an in-service injury, event, or disease. The examiner is specifically requested to consider and discuss as necessary the Veteran’s assertions that he has had throat problems since service due to exposure to paint while in the Navy and/or due to the upper respiratory infections the Veteran sustained during his active duty service. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow