Citation Nr: 1815228 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-22 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 12, 1973 to October 4, 1973 with one additional travel day. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously before the Board in November 2012. FINDING OF FACT The Veteran did not have at least 90 days of active service during a period of war and was not discharged from active service due to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101(29), 1502, 1521 (2012); 38 C.F.R. §§ 3.2(e)-(f), 3.3(a)(3) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Appellant has raised no 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 a duty to assist argument). The Board also finds there has been substantial compliance with its prior remand directives. In September 2016, VA received a negative records response from Ft. Leonard Wood Army Hospital and General Leonard Wood Army Community Hospital regarding any outstanding service treatment records, including inpatient clinical records. The letter advised that any records previously held by those facilities would have been retired to the National Personal Records Center (NPRC). The Veteran was advised of the negative response in a March 2017 letter. In March 2017, a request was made to the NPRC for all outstanding service treatment and service personnel records. The requested records were subsequently received. The service treatment records obtained on remand did not include the requested "August 1973 medical discharge examination." The Veteran was notified of that fact in a May 2017 letter. While a formal finding of unavailability was not issued with regard to that examination report, review of the claims file indicates that further efforts to obtain that record would be futile. Specifically, in a September 27, 1973 statement the Veteran indicated that he did not desire to have a discharge medical examination, and on a January 31, 2008 service connection claim the Veteran reported he did not have a discharge physical examination. Accordingly, the Board finds that there has been substantial compliance with the prior remand directives, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran asserts that he is entitled to nonservice-connected pension benefits because he was discharged from service for a service-connected disability. To establish basic eligibility for VA pension benefits, a veteran must have had the requisite service. 38 U.S.C. § 1521 (2012); 38 C.F.R. § 3.3(2017). A veteran has met the necessary service requirements if he 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 disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service connected disability shown by official service records, which in medical judgment would have justified a medical discharge for 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) (2012); 38 C.F.R. § 3.3(a) (2017). While the Veteran served during a period of war, he only had 84 days of active service plus one additional travel day. As the Veteran had less than 90 days of active service, his claim turns on whether he was discharged or released from service by reason of a service-connected disability. With regard to the nature of the Veteran's discharge, he was not medically discharged. His DD Form 214 indicates that the authority for the Veteran's discharge was "SPN 770 & DA MSG 011510Z AUG 73." Department of the Army message, dated 011510Z August 1973, provided the standards and criteria for the evaluation and discharge of enlistees before 180 active duty days. The program enabled commanders to expeditiously discharge individuals who lacked the necessary motivation, discipline, ability, or aptitude to become a productive soldier when the soldier had voluntarily enlisted, had completed no more than 179 days of active duty by the date of discharge, and had demonstrated that he or she was not qualified for retention. Additionally, the Veteran has not been awarded service connection for any disability, and prior claims for service connection for a psychiatric disorder have been denied. Therefore, the weight of the evidence is against a finding that the Veteran was discharged from active service due to a service-connected disability. As the Veteran had less than 90 days of wartime service, and was not separated from service due to a service-connected disability, basic eligibility for nonservice-connected pension benefits is not established, and the appeal is denied. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs