Citation Nr: 20052952 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-29 038 DATE: August 10, 2020 ORDER Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDING OF FACT 1. The Veteran had a period of active duty training from February 1974 to July 1974. 2. The Veteran served on active duty from August 1978 to March 1979. 3. The Veteran is not shown to have had any active service during a period of war. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 5107 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The matter was most recently before the Board of Veterans’ Appeals (Board) in December 2016 and remanded for further development. The Board notes that the Veteran had his Social Security number changed in 2009. His previous Social Security number has been his VA claims identification number (ID) to date. The Agency of Original Jurisdiction (AOJ) is advised that Board has changed his VA claims ID number to match his new Social Security number and should take any corrective action necessary. Entitlement to nonservice-connected pension benefits The question before the Board is whether the Veteran has established threshold eligibility for VA nonservice-connected pension benefits. The law authorizes the payment of nonservice-connected disability pension to a Veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. 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 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 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). Active duty training includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). A review of the record shows that the Veteran served in the United States Army Reserves with a verified period of active duty training from February 1974 to July 1974. Reserve service is not the same as active duty, and the law has clearly defined each to draw a clear distinction between the two. Thus, the Veteran’s Reserve service cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service-connected pension. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.6. The Veteran served on active duty from August 1978 to March 1979. Under 38 U.S.C. § 101 and 38 C.F.R. § 3.2(f), specifying periods of war, the Vietnam Era began on February 28, 1961, and ended on May 7, 1975, in the case of the veteran who served in the Republic of Vietnam during that period. In all other cases, the Vietnam Era began on August 5, 1964, and ended on May 7, 1975. Thus, he did not serve 90 days or more during a period of war. As the Veteran did not have any qualifying wartime service, he does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. In this case, the law is dispositive. Accordingly, the Veteran’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to service connection for residuals of a TBI Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran indicated in a September 2015 statement that he sought treatment for his TBI at the VA outpatient clinic (VAOPC) in Greenville, South Carolina. These records have not been obtained. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Moreover, the Board cannot make a fully-informed decision on the issue of service connection for residuals of a TBI as the January 2018 VA opinion is inadequate. Notably, the examiner opined the claimed condition was at least as likely as not incurred in or caused by the claim in-service injury; however, the examiner then stated that the Veteran likely had a TBI in service, but the symptoms likely resolved. The examiner further indicated that following the accident the Veteran complained of dizziness and daily headaches for the next few weeks, was fully conscious and well oriented on the day of the accident, and concluded that there was “no further evidence of headache or cognitive complaints until years later.” The Board notes that the physical examination of the Veteran found no evidence of any mental, physical, or neurological conditions or residuals attributable to a TBI. Thus, it is unclear from the opinion whether the Veteran currently has residuals of a TBI, whether headaches treated during service are related to the current complaints of headaches, and what are the specific cognitive complaints the examiner is referring to and whether they are related to the TBI. Consequently, clarification must be sought. Finally, the Board remanded this issue in December 2016 for additional development and adjudication. While the additional development was undertaken, notably obtaining Social Security records and an etiology opinion, the RO failed to issue a Supplemental Statement of the Case (SSOC), which is necessary when the Board directs additional development. 38 C.F.R. § 19.31(c). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the VAOPC in Greenville, South Carolina. A request for records must be made under both Social Security numbers. All requests for records and their responses must be clearly documented in the file. 2. Obtain an addendum opinion from the January 2018 VA examiner, otherwise such opinion must be obtained from an appropriate clinician, regarding whether the Veteran currently has residuals of a TBI. Specifically, the examiner must answer the following: (a) Is it at least as likely as not that the Veteran currently has residuals of a TBI and if so, specifically delineate such residuals? (b) Is it at least as likely as not that the headaches complained of following the motor vehicle accident in service are related to the current complaints of headaches? In answering this question, the examiner must address any gaps in continuity of symptomatology and/or treatment. (c) Is it at least as likely as not that the Veteran has residual cognitive impairment from the TBI and if so, specifically delineate such impairment? Please provide the complete rationale for all opinions expressed. 3. The RO is advised that their records should reflect the corrective action taken regarding the Veteran’s Social Security number. (CONTINUED ON NEXT PAGE)   4. Thereafter, the RO must readjudicate the claim in light of the evidence of record since the February 2016 SSOC was issued. If any benefit sought is not granted, the Veteran and his representative should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, Counsel 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.