Citation Nr: 21065404 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-11 402 DATE: October 26, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for paranoia is remanded. Entitlement to service connection for insomnia is remanded. FINDING OF FACT The Veteran did not serve 90 days or more during a period of war, was not discharged from service due to a service-connected disability after serving during a period of war, did not serve for a period of 90 consecutive days that began or ended during a period of war, and did not serve for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. CONCLUSION OF LAW The criteria for basic eligibility for nonservice-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1974 to January 1975. The Board notes that an October 2013 rating decision also denied the issues of entitlement to service connection for a right shoulder condition and arthritis. In the February 2014 notice of disagreement, the Veteran did not appeal the issues of a right shoulder condition and arthritis; thus, these issues are not before the Board. In a March 2021 letter, the Board informed the Veteran that the warden of the facility in which he was incarcerated must agree to his request for an optional video teleconference (VTC) hearing with a Veterans Law Judge in connection with his appeal. In May 2021, the Veteran returned the form without the required signature by the warden. In August 2021, the Veteran was provided a new optional hearing request form and informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want a hearing and proceed accordingly. As the Veteran has not responded, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Entitlement to nonservice-connected pension benefits The Veteran asserts that he is entitled to nonservice-connected pension benefits. The question before the Board is whether the Veteran has established threshold eligibility for VA nonservice-connected pension benefits. A veteran meets the service requirements to receive nonservice-connected pension benefits if he or she served in 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 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). Based upon the evidence of record, the Board concludes that the Veteran lacks the requisite service for pension benefits. Here, the evidence shows that the Veteran does not meet the initial threshold requirement for pension, as he did not serve for 90 days or more during a period of war, for a period of 90 days that began or ended during a period of war, or for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. Specifically, his DD-214 reveals that he served on active duty during the Vietnam era from October 15, 1974 to January 6, 1975. Thus, the Veteran only had 84 days of active duty service, which is not sufficient wartime service to establish eligibility for pension benefits. Next, given that the Veteran had less than 90 days of active service, he can only establish eligibility for pension benefits if the evidence shows that he was discharged or released from service due to a service-connected disability. Here, the evidence does not show that he was discharged or released from service due to a service-connected disability. Notably, military personnel records show that the Veteran was discharged due to unsuitability. See STR Medical, p. 5. Thus, the evidence does not show eligibility for pension benefits due to a service-connected disability. Accordingly, the Veteran's claim of entitlement to nonservice-connected pension benefits must be denied as a matter of law, as he does not have the requisite length of service to qualify him for this benefit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C 2. Entitlement to service connection for paranoia 3. Entitlement to service connection for insomnia The Board notes that the Veteran has not been afforded VA examinations with respect to his current claims of entitlement to service connection for hepatitis C, paranoia, and insomnia. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). With regard to hepatitis C, a review of the Veteran's service treatment records reveals that the Veteran received two (2) cubic centimeters (CC) of immune serum globulin as prophylaxis for exposure to infectious hepatitis. See STR Medical, p. 12. The Veteran contends that his condition has continued since separation from service. Specifically, the Veteran has indicated that he received a diagnosis of hepatitis C while incarcerated. See VA Form 21-4138, Statement in Support of Claim. As to paranoia and insomnia, the Veteran contends these conditions had their onset in service and have continued since that time. Specifically, the Veteran has stated that he was often assigned to guard duty from 2 a.m. to 4 a.m. He indicated that he was told he could be shot if he fell asleep during watch duty, which shook him. He reports being so jumpy that he has hurt people who have gotten too close to him. He further indicated that he regularly participated in night drills from 9 p.m. to midnight; thus, he has never had the ability to sleep for eight hours. See notice of disagreement. As such, the Board finds that a remand for examination is warranted to ascertain whether his claimed hepatitis C, paranoia, and insomnia are etiologically related to his active duty service. See McLendon, supra. The Board notes that there are treatment records in the Veteran's claims file, with the exception of a behavior treatment plan associated with the file in December 2012. See Medical Treatment Record Non-Government Facility, received December 18, 2012. On remand, the Veteran should be afforded an opportunity to identify all post-service treatment records he wishes for VA to obtain. The Board acknowledges that the Veteran appears to be incarcerated for the foreseeable future. Nevertheless, the duty to assist incarcerated veterans requires VA to tailor its assistance to meet "the peculiar circumstances of confinement" because these individuals are entitled to the same care and consideration given to their fellow veterans. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See Bolton, supra. However, the VA Adjudication Procedure Manual (M21) contains a provision for scheduling examinations of incarcerated Veterans including: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets; or, (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See M21-1, Part III.iv.3.F.2.d. As such, the Agency of Original Jurisdiction (AOJ) should make attempts to schedule the appropriate medical examinations in accordance with the VA Adjudication Procedure Manual provisions discussed above. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess records pertinent to the issues on appeal, to include all correctional facilities in which the Veteran has been incarcerated. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any records obtained should be associated with the record. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. The AOJ should undertake all reasonable measures to schedule the Veteran for the examinations requested below and confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. See M21-1, Part III.iv.3.F.2.d. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. The AOJ should determine which option is the most feasible and document all attempts taken to schedule the Veteran for VA examinations related to his claim. (a.) If the AOJ is unable to afford the Veteran examinations due to his incarceration, document in detail the steps taken in attempting to schedule him for such examinations. (b.) If the AOJ is able to afford the Veteran examinations, the claims folder, including this remand, and any relevant records contained in the electronic system should be sent to the examiner(s) for review, if possible. Consideration of such should be reflected in the completed examination reports. 1. With regard to hepatitis C, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed hepatitis C had its onset in service or is otherwise etiologically related to active service. 2. With regard to paranoia, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed paranoia had its onset in service or is otherwise etiologically related to active service. 3. With regard to insomnia, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's claimed insomnia had its onset in service or is otherwise etiologically related to active service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.