Citation Nr: 21068554 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-04 818 DATE: November 10, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. New and material evidence having been received, the claim for service connection for a disability of the fingers of the bilateral hands is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a finger disability of the right hand is remanded. Entitlement to service connection for a finger disability of the left hand is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease is remanded. Entitlement to service connection for emphysema and scar tissue of the lungs is remanded. Entitlement to service connection for Parkinson's disease is remanded. Entitlement to service connection for schizophrenia is remanded. FINDINGS OF FACT 1. The Veteran did not have active service during a period of war. 2. The claim for entitlement to service connection for a disability of the fingers was denied in a prior rating decision dated in November 1987, and the Veteran did not appeal that decision or submit relevant evidence in the requisite subsequent one-year time period. 3. New and material evidence has been received since the November 1987 rating decision that relates to an unestablished fact necessary to grant the claim for service connection for a finger disability of the bilateral hands. CONCLUSIONS OF LAW 1. 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. 2. The November 1987 rating decision regarding the claim for service connection for a finger disability of the bilateral hands is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 3. The criteria to reopen the claim for service connection for a finger disability of the bilateral hands are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training from September 1976 to November 1976. This matter comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which denied the Veteran's claims. In his January 2014 VA Form 9, the Veteran requested a hearing before the Board as part of his appeal. However, in several letters dated in 2020, the Veteran withdrew his request for a hearing and indicated he wished for the Board to proceed with a decision. Therefore, the Board will adjudicate the claims without a hearing. Unfortunately, as explained in more detail below, a remand of the service connection claims is required for additional development. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. 1. Entitlement to nonservice-connected pension benefits The Veteran contends that he meets the minimum qualifications for pension benefits. As explained in more detail below, the Board finds that the Veteran's claim for pension must be denied. Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C. § 1521 (a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he 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). 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 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, 3.3(a)(3) and (b)(4)(i). In the present case, the Veteran's DD Form 214 shows that he served on active duty from September 12, 1976 to November 2, 1976. He does not contend otherwise. The Board acknowledges the Veteran's argument that he served over 90 days. However, such service does not coincide with a period of war, as defined by VA regulation. 38 C.F.R. § 3.2. Under 38 U.S.C. § 101 and 38 C.F.R. § 3.2 (f), specifying periods of war, the Vietnam Era ended on May 7, 1975. Therefore, the Veteran's service began after the Vietnam Era. Although the Board is sympathetic with respect to the Veteran's disability, without the requisite qualifying service, he is not eligible 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). 2. Whether new and material evidence was submitted to warrant reopening the claim for service connection for a finger disability of the bilateral hands The Board notes that service connection for a finger disability of the bilateral hands was denied in a November 1987 rating decisions, which the Veteran did not appeal. As such, the Board will consider the propriety of reopening the claim. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 C.F.R. § § 20.1100, 20.1103. The exception to this regulation is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the action of the AOJ, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). At the time of the November 1987 AOJ denial of service connection for a finger disability of the bilateral hands, the relevant evidence of record included the Veteran's service treatment records (STRs). The record does not show that the Veteran submitted additional evidence or perfected an appeal to the Board within the required timeframe; thus, the November 1987 rating decision is final. Since the rating decision, the Veteran's representative submitted a brief in support of the claim, which includes citations to articles regarding symphalangism. The evidence is new, as it was not of record at the time of the prior denial. Furthermore, the evidence is material because it bears on the reason for the prior denial, in that the evidence purports to link the Veteran's symptoms to service. As such, the evidence also raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claim for entitlement to service connection for a finger disability of the bilateral hands is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). To this extent only, the appeal is granted. The actual claim for service connection must be remanded. REASONS FOR REMAND 1. Entitlement to service connection for a finger disability of the right hand is remanded. 2. Entitlement to service connection for a finger disability of the left hand is remanded. 3. Entitlement to service connection for a right foot disability is remanded. 4. Entitlement to service connection for a left foot disability is remanded. 5. Entitlement to service connection for chronic obstructive pulmonary disease is remanded. 6. Entitlement to service connection for emphysema and scar tissue of the lungs is remanded. 7. Entitlement to service connection for Parkinson's disease is remanded. 8. Entitlement to service connection for schizophrenia is remanded. The Board notes that the Veteran reported that he has been incarcerated since 1996. The AOJ obtained his medical records dated between 2009 and 2011. However, the Board finds that another request for records is warranted. Specifically, the AOJ should obtain records from 1996 to 2009, especially given that he has reported the existence of the claimed disabilities for many years. The timeframe from 2011 to present day should also be requested since the Veteran is still receiving treatment. Furthermore, a review of the record reveals that the Veteran reported that, prior to his incarceration, he received Social Security Administration (SSA) benefits. No SSA records are associated with the claims file, nor does it appear that any attempt was made to obtain them. Therefore, a remand is also necessary to obtain these records. See 38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain potentially relevant records from other federal agencies). Finally, the Board has determined that a medical opinion regarding the Veteran's finger disability must be obtained. The Veteran's STRs show that he was noted to have congenital "deformities" in both hands, including symphalangism and contractures, at a Medical Board in September 1976. Congenital or developmental "defects" automatically rebut the presumption of soundness upon entrance to service and thus are considered to have preexisted service. 38 C.F.R. § 4.9. Service connection is generally precluded by regulation for such "defects" because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. § 4.9, 4.127; Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007); Johnson v. Shinseki, 24 Vet. App. 344 (2010). If the disorder is considered a congenital or hereditary "defect," service connection may be granted for disability resulting from any superimposed disease or injury. 38 C.F.R. § 4.9. The Board notes that the VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90 (July 18, 1990). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." Id.; VAOPGCPREC 67-90 (July 18, 1990). In other words, if the evidence, as a whole, establishes that a disease (but not a defect) of congenital, developmental or familial (hereditary in) origin was first manifested during service, or preexisted service and progressed at an abnormally high rate during service, then service connection may be granted for such a disease. See, e.g., VAOPGCPREC 82-90; VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 1-90 (March 16, 1990). On the other hand, defects of congenital, development or familial (hereditary) origin may not be service-connected, because they are not diseases or injuries under the law. 38 C.F.R. § 3.303 (c). However, many such defects can be subject to superimposed disease or injury. If, during service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In this case, the Veteran's representative has argued that the Veteran's symphalangism was aggravated by service, and provided a website citation in support of the argument. This suggests that the representative is arguing that the Veteran was diagnosed with a disease, not a defect, and that service connection is warranted for its aggravation. Therefore, a remand is required in order for the AOJ to obtain an opinion regarding the nature of the Veteran's finger disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete releases authorizing VA to obtain his records from the Social Security Administration (SSA). If releases are completed, make efforts to obtain SSA records, including application(s) for benefits and any associated medical records. Associate all SSA records obtained with the claims file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain the records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Ask the Veteran to complete releases authorizing VA to obtain his records from the Florida Department of Corrections. If releases are completed, make reasonable efforts to obtain any identified treatment records, to include records from 1996 to present day. If any requested records are not obtained, inform the Veteran. 3. Obtain an addendum VA medical opinion regarding the Veteran's fingers. The VA examiner must clarify whether the Veteran's finger disability, as noted in the September 1976 STRs, is a congenital disease or defect. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. For any congenital defect, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during active duty service resulting in a current finger disability. For any congenital disease, the examiner should state the date of onset, to include whether manifestations of the disease preexisted the Veteran's service. If so, the examiner should state whether it is at least as likely as not (i.e., at least a 50 percent probability) that there was an increase in the severity during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. For each diagnosis identified that is not congenital and/or did not preexist service, the examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, to include any symptomatology therein. In addressing the above inquiries, the examiner should address the Veteran's representative's argument that the Veteran's diagnosis of symphalangism in the STRs is a misdiagnosis because the Veteran did not have absence of interphalangeal joints or fusion of the involved phalanges; and the following website: https://pubs.rsna.org/doi/10.1148/89.1.91 (Continued on the next page) A complete rationale must be provided for all expressed opinions. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, Associate 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.