Citation Nr: 20072893 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 16-46 269 DATE: November 12, 2020 ORDER Entitlement to nonservice-connected pension benefits effective from April [REDACTED], 2018, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to nonservice-connected pension prior to April [REDACTED], 2018 is remanded. FINDING OF FACT The Veteran reached the age of 65 on April [REDACTED], 2018, had 90 days or more of active service during a period of war, and did not have an annual income in excess of the applicable maximum annual pension rate. CONCLUSION OF LAW As of April [REDACTED], 2018, the criteria for entitlement to nonservice-connected pension benefits have been met. 38 U.S.C. §§ 101(24), 1501(4), 1513, 1521; 38 C.F.R. §§ 3.2, 3.3, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to December 1977 and from January 1981 to February 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in June 2019 before the undersigned Veterans Law Judge. A transcript is of record. Law and Analysis Basic entitlement to nonservice-connected pension benefits for a veteran exists if: (1) the veteran had qualifying service under 38 U.S.C. § 1521(j); (2) the veteran is age 65 or older or permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct; and (3) the veteran meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. §§ 1513, 1521; 38 C.F.R. § 3.3 (a)(3). The qualifying service requirement is met if a veteran 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 and was discharged or released from such 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). The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101 (24); 38 C.F.R. §§ 3.6 (a)-(d). The term “period of war” means 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. 38 U.S.C. § 1501(4); see also 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. § 3.2; see also § 3.3(a)(3) and (b)(4)(i). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to nonservice-connected pension as of April [REDACTED], 2018. The Veteran has already been granted nonservice-connected pension benefits effective from February 1, 2019. As noted above, the Veteran served on active duty from February 1972 to December 1977 and from January 1981 to February 1983. Therefore, he had qualifying service for nonservice-connected pension. The evidence also shows that the Veteran was born on April [REDACTED], 1953. Thus, he reached the age of 65 on April [REDACTED], 2018. Moreover, in a January 2019 application for pension, the Veteran identified Social Security Administration (SSA) retirement benefits as his only source of income and indicated that he had recurring medical expenses in the form of Medicare premiums. He reported that he had received no income other than Social Security in the last year. The evidence includes a Social Security Administration (SSA) inquiry documenting his benefits in 2018, which had a slightly lower rate than in 2019, which was considered in the grant of nonservice-connected pension benefits effective from February 1, 2019. Based on the foregoing, the Board finds that the Veteran is entitled to nonservice-connected pension as of April [REDACTED], 2018. REASONS FOR REMAND During the June 2019 hearing the Veteran testified that he began receiving VA treatment for depression in June 2010. The available medical records also show that he had five prior admissions for psychiatric treatment in 2012. However, the claims file does not contain any VA treatment records dated prior to December 2012. Therefore, the agency of original jurisdiction (AOJ) should obtain any outstanding medical records. Similarly, the Veteran testified during the June 2019 hearing that he had a workman’s compensation claim for a back injury after service, but the claims file does not contain the workman’s compensation records. Thus, on remand, the AOJ should attempt to obtain such records. The Board also notes that the Veteran was afforded a VA examination in May 2015 in connection with his claims for service connection for bilateral hearing loss and tinnitus. The examiner provided a negative nexus opinion, largely relying on a finding that his hearing was normal in service. However, the examiner did not explain the significance of the fact that the Veteran did not have hearing loss or tinnitus in service or address whether any delayed-onset hearing loss or tinnitus could be related to noise exposure therein. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the Board finds that an additional VA medical opinion is needed. The Board further notes that the Veteran has not been afforded a VA examination in connection with his claims for service connection for a right knee disorder and low back disorder. In light of the available service records and the June 2019 hearing testimony, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee and low back disorders that may be present. Moreover, the Board notes that the Veteran was provided a VA general medical examination in March 2015 for nonservice-connected pension benefits. However, the Board finds that an additional examination is needed to address any impairment resulting from a low back disorder as well as the combined effects of his nonservice-connected disorders. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a psychiatric disorder, bilateral hearing loss, tinnitus, right knee disorder, and low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any treatment records dated since June 2010. 2. The AOJ should attempt to obtain any records pertaining to the Veteran’s worker’s compensation claim as reported during the June 2019 hearing. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, hearing testimony, and lay statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorders. For each diagnosis identified other than a personality disorder, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After obtaining any outstanding records, the AOJ should obtain a medical opinion to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. A physical examination is only needed if determined necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner should opine as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss and tinnitus are causally or etiologically related to his military service, to include any noise exposure therein. In rendering this opinion, the examiner should address whether there was a threshold shift during service and the significance, if any, of the existence or absence of such a shift. The examiner should also discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that the Veteran’s current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, hearing testimony, and lay statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a right knee disorder that manifested in or is otherwise related to the Veteran’s military service, including any injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, hearing testimony, and lay statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a low back disorder that manifested in or is otherwise related to the Veteran’s military service, including any injury or symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After completing the foregoing development, the AOJ should obtain a medical opinion to address entitlement to nonservice-connected pension benefits prior to April [REDACTED], 2018. The examiner is requested to review all pertinent records associated with the claims file. The examiner should provide an opinion as to whether the combination of the Veteran’s physical and psychiatric disorders prior to April [REDACTED], 2018, were sufficient to render it impossible for an average person to follow a substantially gainful occupation; or whether his diagnoses were of such a nature to render the him permanently and totally disabled prior to April [REDACTED], 2018. 8. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.