Citation Nr: 21021544 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-34 257 DATE: April 13, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a left hip disability, to include Legg-Calve Perthes (LCP) disease is remanded. FINDING OF FACT The Veteran is not shown to have had any active service during a period of war. CONCLUSION OF LAW The eligibility criteria for nonservice-connected pension have not been met. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and June 2015 decisions. The Veteran presented testimony before the Board in February 2021. 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. A review of the record shows that the Veteran served on active duty from January 1976 to May 1977. The Vietnam Era ended May 7, 1975, and the Persian Gulf War did not begin until August 2, 1990. Thus, his active 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. 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, his 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 a left hip disability, to include LCP disease During the February 2021 Board hearing, the Veteran identified relevant outstanding records. Notably, the Veteran’s attorney indicated that he submitted a brief in support of the appeal with attached relevant medical evidence, to include, but not limited to, a note from the Veteran’s childhood doctor and a transcription from a doctor at the Holcroft Clinic dated in 1972 regarding his left hip condition prior to service. The Board notes that a fax was received by the Board’s intake center on the date of the hearing: however, only pages 19 through 26 of a 26-page submission were received, and did not include the aforementioned brief or treatment records. A remand is required to allow VA to obtain the brief and attached evidence or, if necessary, to obtain authorization and request the identified outstanding private treatment records. The Veteran maintains that his pre-existing LCP disease was aggravated during service. Notably, he maintains that the left hip condition was aggravated by the rigors of basic training, to include running, jumping, and “hard thumping.” BVA Transcript at 6, 8. In light of the missing records pertaining to the manifestations of the Veteran’s disability prior to service, and as it is essential that every disability be viewed in relation to its history, an addendum opinion is necessary. 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain the full 26-page submission (Brief on Appeal and attached medical evidence) faxed to the Board’s intake center on February 19, 2021. If necessary, ask the Veteran to complete VA Form 21-4142 for pre-service medical records, to include from his childhood doctor and the Holcroft Clinic dated in 1972. Make two requests for the authorized records from identified providers unless it is clear after the first request that a second request would be futile. 2. Once the aforementioned records have been obtained. request an addendum opinion from an appropriately qualified provider. The relevant records must be made available to and reviewed by the designated VA examiner, including a complete copy of this remand and the additional records that were submitted in February 2021 and obtained pursuant to this remand. Whether the Veteran actually needs to be re-examined to provide this additional medical comment, versus just file review, is left to the discretion of the examiner designated to provide this additional medical comment. Based on a review of all the evidence of record pertaining to the manifestations of the Veteran’s LCP disease prior to, during and subsequent to service, the examiner is asked to provide a response to the following: Did the Veteran’s LCP disease, which existed prior to service, at least as likely as not (a 50 percent or greater probability) increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? It is essential the examiner provide rationale for the opinion, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority.   3. If upon completion of the above action, the issue remains denied the matter must be returned to the Board after compliance with appellate procedures. A. C. MACKENZIE 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.