Citation Nr: 18152426 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-10 653 DATE: November 21, 2018 ORDER The service-connection claim for a left elbow disability is reopened. The service-connection claim for a neck disability is reopened. The service-connection claim for a left leg disability is reopened. Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left leg disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2009 rating decision, the RO denied service-connection for left elbow, neck and left leg disabilities. 2. The evidence received since the April 2009 rating decision relates to an unestablished fact necessary to substantiate the claims for service connection for neck, left elbow, and left leg disabilities. 3. The Veteran did not have 90 days of active service during a recognized period of war. CONCLUSIONS OF LAW 1. The April 2009 rating decision denying service connection for left elbow, neck, and left leg disabilities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a left elbow disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a neck disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a left leg disability has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The basic eligibility criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101(2), 1521(a), (j), 5107(a) (2012); 38 C.F.R. §§ 3.2, 3.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to April 1988 and from February 1991 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. In April 2018, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing, the Veteran limited the scope of his appeal from a bilateral elbow disability to a left elbow disability. The Board has accordingly recharacterized the issue. Service connection for a left elbow disability, neck disability, and left leg disability was initially denied in an April 2009 rating decision. The Veteran did not appeal that decision, nor did he submit new and material evidence within one year. As such, the decision became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). Since that decision, new and material evidence has been associated with the claims file; in particular, additional information showing diagnosis of chronic neck/cervical spine and left leg disability as well as additional statements regarding the onset and nature of the disabilities. Accordingly, these claims are reopened. Entitlement to Nonservice-Connected Pension Benefits The Veteran seeks non-service connected VA pension benefits. Pension is a benefit payable by VA to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). With regard to the necessary service requirements in particular, a veteran meets this condition 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. § 1521(j); 38 C.F.R. § 3.3(a). The Veteran does not meet the basic eligibility requirements for receipt of nonservice-connected pension, due to the absence of having had 90 days of service during a recognized period of war. The Veteran's DD 214 reflects service from May 1978 to April 1988. In addition, he served from February 1991 to March 1991 for a period of 1 month and 14 days. Pursuant to regulation, the Vietnam era is recognized as 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 begins on August 5, 1964, and ends on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2. Pursuant to regulation, the Persian Gulf War era began on August 2, 1990. Thus, the Veteran’s first period of service from 1978 to 1988 was not during a period of war. As to the Veteran’s service in 1991, while this service was during the Persian Gulf War era, it was not 90 days in length. The Board acknowledges the Veteran’s contention that he had received letters from VA indicating that he must have at least 1 day of wartime service. He reported that he was in inactive ready reserves when he was recalled to active duty in support of Desert Shield/Storm. However, the legal authority is quite clear that at least 90 days of wartime is warranted for receipt of pension. Moreover, the record does not reflect, nor does the record reflect that the Veteran served during a period of war and was discharged or released from service for a service-connected disability. In conclusion, the Board finds that the Veteran does not have 90 days or more of active military, naval, or air service during one or more Periods of War, was not discharged from his period of active service during by reason of a disability “adjudged service-connected,” and had no disabilities adjudged service-connected at the time of his separation from service he could have medically justified discharge for disability. Therefore, the provisions of 38 U.S.C. §§ 1521 and 38 C.F.R. §§ 3.2 and 3.3 preclude eligibility to nonservice-connected pension benefits, and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The Board's review of the record reveals that additional development on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision. Neck and Left Elbow The Veteran contends that his neck disability is the result of whiplash injury incurred in two different motor vehicle accidents in service. He continued to experience pain to his neck in service, as he did special sit-up positioning to avoid aggravation of his pilonidal cyst in service. He also reports that he injured his left elbow when he fell out of the vehicle during one of the accidents. On VA examination in August 2013, the examiner diagnosed bilateral elbow strain degenerative disc disease and spondylosis with neural foraminal encroachment. He noted that while the Veteran reported elbow injury from motor vehicle accidents in service, there were no medical records regarding elbow conditions or complaints. As there were no medical records to identify causality between the Veteran’s elbow condition and military service, the examiner determined that the claimed elbow disability was less likely than not incurred in or caused by the claimed in-service event or injury. Similarly, the examiner found it less likely than not that the claimed neck disability was due to service, given that service treatment record did not reveal neck conditions or complaints and there were no medical records to identify causality between the Veteran’s neck condition and military service. The Board notes that the Veteran is competent to report that which he has personally experienced, such as pain and onset of elbow and neck symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the examiner did not adequately address these contentions when discussing the rationale for the opinions reached. Once VA undertakes to provide an examination, it is obligated to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given that the VA examiner did not address the Veteran’s competent report regarding the onset and chronic nature of his elbow and neck injuries, the Board finds that another examination to determine the etiology of these claimed disabilities is warranted. Left Leg During the Veteran’s Board hearing, he testified that his left leg disability began in service, started as a sprained ankle incurred while running, and then progressing to shin splints. He noted that current treatment providers have mainly focused on his left knee, but he had pain and mobility problems in the leg including difficulty with bending and standing. In a written statement, the Veteran reported that his left shin had bothered him since service. The Veteran’s service treatment records reflect that he was seen for complaints of left leg pain in August 1981, and was assessed with shin splints/possible tendonitis. He complaint of left leg soreness in November 1984. It was noted that he ran approximately 25 miles per week. He was assessed with tendonitis secondary to exertion. As a result of his accident in November 1985, the Veteran was treated for a left knee laceration. On VA examination in August 2013, the examiner opined that the Veteran’s left shin splint disability is less likely than not related to service. The examiner noted that there were no medical records available regarding shin splints or shin complaints, and examination was normal. The examiner provided a negative nexus opinion, as there were no medical records to identify causality between the Veteran’s shin splints and military service. The VA examiner did not address the pertinent evidence in service as well as the Veteran’s report of chronic left leg symptoms since service. Again, once VA undertakes to provide an examination, it is obligated to ensure that the examination is adequate. Barr, 21 Vet. App. at 303. For these reasons, the Board believes that another examination is necessary to determine the nature and etiology of the claimed left leg disability. The matter is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records, including any records of VA treatment. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed left elbow, neck, and left legs disabilities. Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should identify all left elbow, neck/cervical spine and left leg disorders. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability first manifest in service or within one year of discharge thereof or is otherwise medically related to service. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner is specifically asked to consider and address the Veteran’s statements and testimony regarding in-service injuries to the elbow and neck around the time of the motor vehicle accidents and symptoms since that time, as well as the Veteran’s report of chronic leg symptoms since the complaints and treatment of shin splints/tendonitis in the 1980s in service. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel