Citation Nr: 21025498 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-52 251 DATE: April 28, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to an initial compensable rating for right inguinal hernia is remanded. Entitlement to service connection for left inguinal hernia for compensation purposes is remanded. FINDING OF FACT The Veteran is not 65 years of age or older and is not permanently and totally disabled from nonservice-connected disabilities. CONCLUSION OF LAW The criteria for nonservice-connected pension have not been met. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard from November 2002 to June 2003, and the United States Army from December 2006 to November 2007. During her periods of service, she earned the Army Achievement Medal and Army Service Ribbon. 1. Entitlement to nonservice-connected pension benefits VA nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served in the Army National Guard from November 2002 to June 2003, and the United States Army from December 2006 to November 2007, which includes service during the Gulf War Era. 38 C.F.R. § 3.2 (2020). Thus, she meets the requirement of having service during a recognized period of war. The Veteran’s DD-214 shows her date of birth as August 16, 1983; thus, she has not attained the age of 65. Therefore, the evidence must show that she is permanently and totally disabled due to her nonservice-connected disabilities. The evidence of record is negative for any indication that the Veteran is permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran receives Social Security Administration disability benefits or is a patient in a nursing home. Although SSA determinations are not binding on VA, it is noteworthy that SSA determined the Veteran’s condition is not severe enough to keep her from working in an October 2009 disability determination. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA’s favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). Moreover, the evidence of record does not demonstrate that the Veteran is unemployable or has a disability that would render the average person unable to follow a substantially gainful occupation. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the “average person” test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. The Board acknowledges that the Veteran has nonservice-connected disabilities; however, they have not been shown by competent credible evidence to be permanently and totally disabling. The evidence of record reflects that the Veteran is not 65 years old and is not permanently and totally disabled as due to nonservice-connected disabilities. The Veteran has completed high school and one year of college. Also, at the time of her September 2020 Board hearing, she testified to maintaining full-time sedentary employment. Thus, given the foregoing, the Veteran was not prevented from maintaining gainful employment Accordingly, the Board finds that the claim of entitlement to nonservice-connection pension must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension, as the evidence of the Veteran’s age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to nonservice-connected pension, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020). REASONS FOR REMAND 1. Entitlement to a higher rating for right inguinal hernia The Veteran is currently assigned a noncompensable rating for her service-connected right inguinal hernia. However, at the time of her July 2017 VA hernias examination, the Veteran reported symptoms not contemplated by DC 7338, but which may be compensated under alternate diagnostic codes. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the VA should consider all schedular rating options and secondary service connection for uncompensated symptoms before considering extraschedular consideration). Specifically, the July 2017 examination report shows that the Veteran reported experiencing pain at the surgical site when straining to have a bowel movement, constipation, urinary incontinence and urgency, and painful sexual intercourse, which she attributed to her right inguinal hernia. However, the examiner did not make any findings regarding the cause of the reported symptoms, nor was there adequate development to permit the Board to rate the symptoms under the rating schedule. Accordingly, a remand is necessary to obtain a new VA examination.   2. Entitlement to service connection for left inguinal hernia The Veteran’s service records show that she was discharged on November 30, 2007 under other than honorable conditions. During her hearing before the Board in September 2020, the Veteran testified that she had applied to the Department of the Army for an upgraded discharge, which she contends was granted in November 2019. A review of the claims file contains correspondence from the Defense Finance and Accounting Service stating the Veteran’s November 30, 2007 discharge had been upgraded from other than honorable to general (under honorable conditions). However, the claims file does not contain a copy of a formal determination issued by the Department of the Army Discharge Review Board or the Army Board of Correction of Military Records (ABCMR). Moreover, a September 2020 VA correspondence certifies that the Veteran’s character of discharge for the period of service from December 2006 to November 2007 is listed as “12D,” which bars the Veteran from receiving gratuitous benefits per 38 C.F.R. § 3.12(d) or signifies that the Veteran was discharged under circumstances involving a bar specified in 38 C.F.R. § 3.12(d), but she is eligible for complete separation at an earlier date. Service department findings are binding and conclusive upon VA for purposes of establishing an individual’s service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); Spencer v. West, 13 Vet. App. 376, 380 (2000). Since the character of the Veteran’s discharge for her period of service from December 2006 to November 2007 is integral to the claim on appeal, and her right to VA compensation benefits, the Board finds that this matter must be remanded to obtain documentation associated with the upgrade determination for the period of service from December 2006 to November 2007. On remand, the AOJ should attempt to obtain full copies of such records. The matters are REMANDED for the following action: 1. Contact the appropriate Department of Defense agencies, to include the Department of the Army Discharge Review Board or the Army Board of Correction of Military Records, for the purpose of obtaining all materials related to any upgrade application undertaken by the Veteran. The AOJ is specifically requested to obtain any records pertaining to the claim identified as the Veteran’s upgraded discharge, as noted in the March 5, 2020 correspondence from the Defense Finance and Accounting Service. Any unsuccessful attempts should be memorialized and associated with the claims file. 2. Schedule the Veteran for a VA examination with the appropriate examiner to determine the current severity and manifestations of her service-connected right inguinal hernia. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) Additionally, the examiner should describe all symptoms associated with the Veteran’s service-connected right inguinal hernia, to include pain at the surgical site, constipation, urinary incontinence and urgency, and sexual dysfunction, well as the nature and severity of each symptom. If the examiner determines that any symptom or disorder is not related to the Veteran’s right inguinal hernia, the examiner must explain why it is not related. In addressing such inquiries, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran’s lay statements, accepted medical principles, and objective medical findings. All examination findings or testing results, along with a complete, clearly stated rationale for any opinion offered, must be provided. 3. After undertaking the aforementioned development, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and her representative a supplemental statement of the case and allow an appropriate period for response. GAYLE STROMMEN 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.