Citation Nr: 20021519 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-24 781 DATE: March 26, 2020 ORDER Entitlement to the assignment of nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a seizure disability, to include epilepsy, is remanded. Entitlement to service connection for a right hand disability is remanded. FINDING OF FACT The Veteran does not have qualifying wartime service. CONCLUSION OF LAW The criteria for basic eligibility for nonservice-connected pension have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to August 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for epilepsy, a right hand disability, and the nonservice-connected pension. In October 2013, the Veteran submitted a timely Notice of Disagreement (NOD). In April 2017, the RO issued a Statement of the Case (SOC), and the Veteran filed a timely VA Form 9 appeal to the Board in May 2017. In October 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). However, an audio problem during the hearing prevented transcription of the hearing. Therefore, the hearing transcript is not of record. Pursuant to 38 C.F.R. § 20.717, the Veteran was given the opportunity to request another hearing. The Veteran had 30 days from December 19, 2019, the date of the Board inaudible hearing letter, to make the request. The Veteran did not make a request for another hearing within 30 days of the letter. Accordingly, the Board may proceed without prejudice. 1. Entitlement to the assignment of nonservice-connected pension benefits. The Veteran seeks a nonservice-connected pension. A veteran is entitled to nonservice-connected pension benefits if he is permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided that he has the requisite service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements to receive nonservice-connected pension benefits if such veteran served in the active military, naval or air service: (a) for 90 days or more during a period of war; (b) during a period of war and was discharged or released from such service for a service-connected disability; (c) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (d) 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). The Veteran’s DD Form 214 reflects that he had active service between October 1981 and August 1982. He does not have any other periods of service. The periods of war for purposes of establishing eligibility for nonservice-connected pension benefits are set forth in Section 3.2 of Chapter 38 of the Code of Federal Regulations. Pertinent to the Veteran's claim, Vietnam era (wartime) service is defined as "[t]he 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 beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases." 38 C.F.R. § 3.2(f). Persian Gulf War era service is defined as the period beginning on “August 2, 1990, through date to be prescribed by Presidential proclamation or law.” 38 C.F.R. § 3.2(i). The period between May 7, 1975 and August 2, 1990 is considered peace time. In this case, the Veteran does not contend, and the evidence does not reflect, that he served either during the Vietnam or Persian Gulf War eras. It is undisputed that the Veteran’s service between October 1981 and August 1982 is peace time service. As the Veteran does not have any period of active service during wartime, he does not meet the basic eligibility criteria for consideration of entitlement to nonservice-connected pension benefits. The legal criteria in this case are clear and the pertinent facts are not in dispute. The Veteran did not serve during a period of war as defined by law or regulation. Thus, as he had no wartime service, he is ineligible for nonservice-connected pension benefits. See 38 U.S.C. § 1521(j). Accordingly, the Veteran’s claim for nonservice-connected pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a seizure disability, to include epilepsy. The Veteran contends that his currently diagnosed epileptic seizures began during service and have continued to the present. Service treatment records (STRs) show that the Veteran suffered from seizures during service and was prescribed dilantin, an anticonvulsant, to control them. See STRs dated July 8, 1982. The entrance examination is silent for mention of seizures or medication for seizures, but the seizures and dilantin prescription were noted at separation. However, the STRs also indicate that the Veteran first suffered a seizure in August 1981, one month before entering the military, while driving. After the pre-service seizure, the Veteran was hospitalized for one week at Carney hospital in Boston, where he received a CAT scan, a diagnosis of a seizure disorder, and a prescription for dilantin. The Veteran stopped taking the dilantin after three to four weeks, around the time of his September 1981 entrance into service. See STRs dated January 13, 1982, April 12, 1982, and July 20, 1982. The Veteran has not received a VA examination for his epileptic seizures. In July 2013, the Veteran failed to appear for a VA examination. However, at the time of the scheduled VA examination, the Veteran was incarcerated. See Massachusetts Department of Corrections medical records uploaded on August 26, 2015. Efforts to contact the Veteran and his representative to reschedule the VA examination failed. Thereafter, in August 2015, the Veteran, who entered a period of homelessness after release, failed to report for a second VA examination for his seizures. Again, efforts to contact him failed. To date, the Veteran has yet to receive a VA examination for his seizures. For service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159 (c) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence shows that the currently diagnosed seizure disability was manifest during service. Moreover, there is no medical nexus evidence of record. Therefore, remand is warranted for a VA examination and opinion on the nexus between the Veteran’s currently diagnosed seizure disability and his active service. Given the pre-service evidence of a seizure disability, the VA examiner must opine on whether the seizure disability was a preexisting disability that was aggravated by service, or alternatively, whether the seizure disability had onset in or is otherwise related to service. Furthermore, the record reflects, and the Veteran’s representative avers, that the Veteran has identified private medical records that VA has not yet associated with the claims file. Although VA has apparently made one unsuccessful attempt to get the records, VA must make two attempts to obtain private medical records identified by a veteran unless it makes a finding that a second attempt would be futile. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also April 2017 VA Form 21-6789. No futility finding has been made in this case. Accordingly, VA must make another attempt to obtain the private medical records identified by the Veteran. 2. Entitlement to service connection for a right hand disability. The Veteran contends that his right hand disability was caused by an injury to the hand during service. The STRs indicate treatment for a right hand injury during service. No signs of swelling, infection, or high temperature were noted. The injury was diagnosed as a “bone bruise.” STRs dated January 13, 1982. There is no additional STR evidence of treatment for a right hand disability during service. After service, the Veteran received an x-ray of his right hand. See Dr. F., x-ray report dated May 18, 1994. Dr. F. identified “soft tissue swelling surrounding the proximal interphalangeal joint of the 3rd finger” as well as “bone fragments on both the radial and ulnar side of the distal end of the proximal phalanx” and a “fracture through the proximal portion of the middle phalanx on the ulnar side without significant displacement.” Dr. F. diagnosed soft tissue swelling, “multiple tiny avulsion fragments,” and a middle phalanx fracture. A further examination identified the proximal phalanx injury as an “old” fracture resulting in finger deformities. See Dr. B., x-ray report dated May 17, 1995. In October 2019, the Veteran submitted photographs of his finger deformities. The Veteran has not received a VA examination for his right hand disability. Given the evidence of current disability and in-service injury, remand is warranted for a VA examination and opinion on the connection between the right hand disability and service. McLendon, 20 Vet. App. at 79. In particular, the VA examiner must consider the in-service right hand injury documented in the STRs and the post-service x-ray reports completed in May 1994 and May 1995. Furthermore, as with the seizure issue, VA must make an additional attempt to locate private medical records identified by the Veteran which pertain to the right hand disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all of the Veteran’s outstanding VA treatment and private treatment records relevant to the pending claim on appeal, including any VA treatment records dated since November 2014. In particular, VA must obtain records identified by the Veteran from the Boston University School of Medicine and Boston Medical. All actions to obtain the requested records should be documented fully in the claims file. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any seizure disability, to include epilepsy. A complete rationale for all opinions must be provided. Based on consideration of all pertinent medical and lay evidence of record, the VA examiner should provide an opinion with respect to the following questions: (a) The VA examiner must determine whether any seizure disability clearly and unmistakably predated service. (b) If the VA examiner finds that any seizure disability clearly and unmistakably pre-existed active service, the VA examiner must determine whether there is clear and unmistakable evidence that any seizure disability was not aggravated by service. (c) If the VA examiner determines that there is no clear and unmistakable evidence that any seizure disability predated service and/or any seizure disability was not aggravated by service, the VA examiner must provide an opinion on whether it is at least as likely as not that any seizure disability is caused by or related to active service. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any right hand disability. A complete rationale for all opinions must be provided. (Continued on the next page)   The VA examiner must opine whether any right hand disability is at least as likely as not related to an in-service injury event, or disease during active service. Specifically, the VA examiner must consider the STR entry from January 3, 1982 documenting a right hand injury and the May 1994 and May 1995 radiological reports. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Law Clerk 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.