Citation Nr: 18161120 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-46 630 DATE: December 28, 2018 ORDER Entitlement to service connection for a back disorder to include as a residual of a gunshot wound is denied. Entitlement to nonservice-connected pension is denied. FINDINGS OF FACT 1. The Veteran did not suffer a back injury while on active duty. 2. The Veteran did not receive treatment or a diagnosis for a back disability while on active duty. 3. The Veteran received a gunshot wound after he left the service. 4. The Veteran did not serve during a period of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder to include as a residual of a gunshot wound have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(2017). 2. The criteria for entitlement to nonservice-connected pension have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1976 to February 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 3. Entitlement to service connection for a back disorder to include as a residual of a gunshot wound The Veteran essentially contends that his disability is due to his military service. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the record reflects that the Veteran has reported chronic back pain. Turning to the medical evidence at hand, the Board has reviewed the Veteran’s service treatment records and the Board notes that the Veteran’s service treatment records are silent for treatment or a diagnosis of a back disorder. The Board also notes that the Veteran’s service treatment records are silent for any history of a gunshot wound. In this regard, while more recent treatment records reflect the presence of a bullet in the Veteran’s right upper quadrant of the abdomen, no entrance wound is noted in this area in the Veteran’s service treatment records. In addition, while a scar was noted on the upper torso on the right side of the back lumbar region during service in November 1976, this was not identified by either the examiner or the Veteran as an entrance scar. In addition, the Board has reviewed the Veteran’s post-service medical records. The Veteran’s post-service medical records show that the Veteran reported low back pain several decades after he left the service. Moreover, they indicate that the Veteran reported a history of a gunshot wound in 1987 (October 2004 private treatment record), approximately 10 years after his discharge from service in February 1977. Lastly, after a review of the Veteran’s post-service medical records, the Board finds no evidence of a doctor providing a nexus or medical link between his present disability and his military service. In sum, the Board finds that service connection for a back disorder is not warranted. After a review of the Veteran’s claims file, the Board concludes that the evidence is against a finding that any in-service event, injury, or disease caused the Veteran to develop a back disorder. Moreover, the Veteran’s post-service medical history contains no evidence that demonstrates that his present disability is related to his military service. For the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and entitlement to service connection for a back disorder, to include as a residual of a gunshot wound, is not warranted. 38 U.S.C. § 5107(b). 4. Entitlement to nonservice-connected pension The Veteran contends that he meets the criteria for a nonservice-connected pension. Generally, entitlement to nonservice-connected pension benefits is warranted when a Veteran: (1) served in the active military, naval, or air service for 90 days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct; and (3) meets the net worth requirements and has an annual income that does not exceed the applicable maximum annual pension rate. 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23, 3.273, 3.274, 3.275. The term “period of war” is defined by statute and includes: the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. §§ 101 (6), (7), (8), (9), (11), (29), (30), (33); 38 C.F.R. § 3.2. The Vietnam War period is from February 28, 1961, to May 7, 1975, for those who served in Vietnam, and from August 5, 1964, to May 7, 1975, for those who did not serve in Vietnam. 38 U.S.C. § 101 (29); 38 C.F.R. § 3.2. The Persian Gulf War period is from August 2, 1990, to the date thereafter prescribed by Presidential proclamation or law. 38 U.S.C. § 101 (33); 38 C.F.R. § 3.2. The record reflects that the Veteran had active service from February 1976 to February 1977. In sum, the Board finds that the award of a nonservice-connected pension is not warranted. The Veteran's qualifying service period occurred after the Vietnam War and prior to the Persian Gulf War. Although the Board sympathizes with the Veteran’s circumstances, entitlement to nonservice-connected pension benefits is not warranted. As wartime service is a threshold criterion for establishing entitlement to nonservice-connected pension benefits, there is simply no legal basis to award such benefits. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a nonservice-connected pension must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Counsel