Citation Nr: 21068766 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-28 625 DATE: November 12, 2021 ORDER Entitlement to an effective date of June 30, 2015, for the grant of nonservice-connected pension is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT VA received the Veteran's intent to file form on June 30, 2015; a complete pension application was received on July 10, 2015, within one year of the receipt of the intent to file a claim. CONCLUSION OF LAW The criteria for an effective date of June 30, 2015, for the award of nonservice-connected pension have been met. 38 § U.S.C. 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to December 1993. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 20121, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. As an initial matter, the Board notes that the Veteran's claim for service connection for a right knee disability was originally denied by the RO in a January 2015 decision. In September 2015, within a year of that rating decision, the Veteran submitted another service connection claim for a right knee disability and relevant medical evidence was also received. Thus, the claim will be considered on the merits. 38 C.F.R. § 3.156(b). 1. Entitlement to an effective date earlier than July 10, 2015, for the grant of nonservice-connected pension. The Veteran contends that the effective date of the grant of his nonservice-connected pension benefits should be earlier than July 10, 2015. See Hearing Transcript (June 2021). Specifically, he asserted that he filed a claim a year earlier, in 2014. He stated that he should have gotten pension 90 days after the day he last worked in August 2014, and that his paperwork was lost and never sent. See Correspondence (March 2018). Generally, except as otherwise provided, the effective date of an evaluation and award of pension based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2018). Under 38 C.F.R. § 3.151(a), a claim by a Veteran for compensation may be considered a claim for pension and a claim for pension may be considered to be a claim for compensation. An intent to file a claim must identify the general benefit but need not identify the specific benefit claimed. 38 C.F.R. § 3.155(b)(2) (2018). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives the complete application form prescribed by the Secretary, appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.115(b) (2018). In the instant case, the Veteran reports that he submitted VA Form 21-0966, Intent to File for Pension prior to July 10, 2015. The timeline of his filing of his claims for both compensation and pension on the required VA forms which was within one year of the reported intent to file and the RO's acknowledgement of an intent to file for compensation supports the Veteran's credibility in this matter. Notably, a notification letter dated June 30, 2015, acknowledged a receipt of an Intent to File Form on June 30, 2015 and noted the Veteran was seeking compensation. See Notification Letter (June 2015). However, the actual Intent to File Form is not of record. Therefore, the Board will resolve doubt in the Veteran's favor and find that the intent to file included a pension claim. As a complete pension application was received within one year of receipt of the intent to file a claim on July 10, 2015, the evidence warrants the assignment of an effective date for nonservice-connected pension from June 30, 2015. To this extent the claim is granted. However, an earlier effective date is denied. In this regard, the record reflects that the Veteran filed a claim for nonservice-connected pension benefits in September 2008. However, he subsequently withdrew that claim in correspondence dated in November 2008. He filed a claim for compensation benefits on VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, in May 2014, but there was no mention anywhere on the form that he was seeking nonservice-connected pension benefits. While the Veteran asserts that a September 2014 claim included a claim for nonservice-connection pension and that some paperwork could have been lost, no available evidence of record supports that contention. See NOD (September 2016). There is no correspondence dating in September 2014. As stated above, the Veteran has also asserted that the "paperwork" was lost and never sent. Following the withdrawn 2008 claim for nonservice-connected pension, the next claim for nonservice-connected pension was filed on July 10, 2015, shortly following the intent to file received on June 30, 2015. Thus, the appropriate effective date for the award of nonservice-connected pension is June 30, 2015, the date the intent to file was received. However, the preponderance of the evidence is against the claim for an even earlier effective date, and to this extent, the appeal is denied. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability. The Veteran contends that his right knee disability resulted from the many parachute jumps he performed as a Special Forces Weapons Sergeant. See NOD (March 2016); Hearing Transcript (June 2021). He stated that he was put in a cast and has pictures to evidence that. He also stated that his right knee problems have persisted since. See Hearing Transcript (June 2021). He also stated that he was unable to make his examination because he was homeless and expressed his desire to attend a new examination. Id. The Veteran was scheduled for a VA examination in connection with his service connection claim for a right knee disability in December 2014, January 2016 and April 2018, but he failed to report. December 2014, March 2016 and April 2018 communications indicate that the Veteran called to reschedule his examinations. See VA 21-0820 Report of General Information (December 2014, March 2016 and April 2018). The Board finds that the Veteran has shown good cause for failing to report for his VA examinations; thus, remand to afford the Veteran a VA examination in connection with his service connection claim for right knee disability. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain outstanding VA treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for an appropriate examination to address his right knee disability claim. The claims file must be reviewed in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Please provide a diagnosis for any right knee disability found. If a diagnosis cannot be provided, please indicate whether the condition manifests in symptoms that cause functional impairment in earning capacity. (b.) Provide an opinion on whether it at least as likely as not (50 percent or greater probability) that a right knee disability had its onset during service or is otherwise related to service, to include parachute jumping during service. The examiner should explain why or why not, to include addressing why the current disability is or is not a delayed post-traumatic residual of in-service activities. (c.) If not related to service, is it at least as likely as not (50 percent probability or greater) that a right knee disability was caused by the service-connected low back disability? (d.) If not caused by the service-connected low back disability, is it at least as likely as not that a right knee disability is worsened beyond natural progression (aggravated) by his service-connected back disability? If the examiner finds that the right knee disability was aggravated by his service-connected back condition, the examiner should attempt to quantify the level of aggravation in the right knee beyond the baseline level that is due to the back condition. A rationale for all opinions should be provided. 3. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.