Citation Nr: 21029427 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-22 137 DATE: May 13, 2021 ORDER Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to a permanent and total disability rating to establish basic eligibility for nonservice-connected pension is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to payment of nonservice-connected pension benefits based on countable income is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a neck disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had a right shoulder disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a right hip disability at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had a left hip disability at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had a right knee disability at any time during or approximate to the pendency of the claim. 6. Social Security Administration records show that the Veteran was permanently and totally disabled for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for a permanent and total disability rating to establish basic eligibility to nonservice-connected pension have been met. 38 U.S.C. § 1521(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1990 to July 1991. The Board remanded the appeal in February 2019, in pertinent part, to obtain outstanding Social Security Administration (SSA) records, updated VA treatment records, and an examination and medical opinion to address the Veteran's acquired psychiatric disorder. SSA and VA treatment records have been obtained. The Board finds, however, that a remand for an addendum opinion is needed to address the Veteran's acquired psychiatric disorder. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Neck, Right Shoulder, Left Hip, and Right Knee The Board finds that the Veteran does not have a currently diagnosed disability of the neck, right shoulder, left hip, or right knee and has not had one at any time during the pendency of the claim or recent to the filing of the claim shown by the evidence of record, lay and medical. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As was noted in the Board's prior remand, the record includes no treatment records or lay evidence showing the presence of disabilities related to the neck, right shoulder, left hip, or right knee. The Board remanded the matter in order for the Veteran's Social Security Administration (SSA) records and VA treatment records. The SSA records obtained do not provide any more information related to these claims. The RO attempted to obtain VA treatment records, but received a response indicating no records of treatment are available. Thus, based upon a review of the evidence of record, the Board finds the Veteran does not have a current disability of the neck, right shoulder, left hip, or right knee and has not had one at any time during the pendency of the claim. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, these claims for service connection for disabilities of the neck, right shoulder, left hip, or right knee must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Right Hip The Board concludes that, while the Veteran has been treated for symptoms in his right hip, the preponderance of the evidence is against finding that a right hip disorder began during active service, or is otherwise related to an in-service injury, event, or disease. In February 2009, the Veteran was shown to have one complaint of right hip pain. He was seen in the emergency room with pain in the chest, hand, back, and right hip after walking all night in the cold. He was diagnosed with cold weather exposure and myalgias. No further complaints relating to the right hip were shown by the record. The February 2009 complaint of right hip pain was not shown to be chronic, and was not incurred in service. Service treatment records do not identify any in-service injury, event, or disease related to the right hip and there is no indication of any nexus between the Veteran's February 2009 complaint and service. For these reasons, the Board finds that that the preponderance of the evidence is against finding that the Veteran has a right hip disability that was incurred in service. Permanent and Total Disability Rating to Establish Basic Eligibility for Nonservice-Connected Pension Nonservice-connected pension benefits are paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities, which are not the result of willful misconduct. 38 U.S.C. § 1521(a). A claimant will be considered permanently and totally disabled if the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner finds said claimant to be disabled. The Board notes that entitlement to pension was initially denied in the May 2014 decision on appeal because the Veteran did not meet minimum active duty service requirements. A person who originally enlists in a regular component of the Armed Forces after September 7, 1980, and any other person who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (an "early out"), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term minimum period of active duty means the shorter of the following periods: (1) twenty-four months of continuous active duty; (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a (a). The minimum period of active duty requirement does not apply to a person with a compensable service-connected disability. See 38 C.F.R. § 3.12A(d)(3). Subsequent to the May 2014 decision, the Veteran was awarded service-connected benefits. Thus, the minimum active requirement no longer applies. In a February 2017 statement of the case, the RO continued to deny entitlement to pension, finding that there was no evidence to show that the Veteran was unable to secure and follow substantially gainful occupation by reason of disability. SSA records obtained on remand show that the Veteran was awarded Supplemental Security Income benefits from May 2009 based on disability. A Mental Residual Functional Capacity Assessment and associated psychiatric opinion shows that the Veteran would be unable to perform even routine work with consistency and at a reasonable place, and would not be able to sustain substantial gainful activity. The Board finds, therefore, that the Veteran is permanent and totally disabled for the entire appeal period from April 10, 2014, the date of his claim for pension, in light of the SSA determination. REASONS FOR REMAND Service Connection Acquired Psychiatric Disorder A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When a veteran is presumed sound upon entry, as here, given the lack of any clinical notation in the Veteran's enlistment examination report, the burden shifts to VA to rebut the presumption of soundness. 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. If VA does not rebut the presumption of soundness, then the Veteran is presumed sound upon entry to service and the question is one of direct service connection. The Board finds VA has not rebutted the presumption of soundness with respect to the issue of an acquired psychiatric disorder. The only evidence indicating that an acquired psychiatric disorder may have existed prior to service is the Veteran's own report of seeking psychiatric treatment pre-service after the death of a girlfriend. The Board finds, however, that this is not clear and unmistakable evidence that a chronic acquired psychiatric disability existed prior to service and was present upon the Veteran's entrance into military service. Accordingly, the question is one of direct service connection and not aggravation. The November 2019 VA opinion indicates that the Veteran's major depressive disorder was not incurred in or caused by service based on the rationale that the Veteran had trauma history in childhood. The examiner did not consider the Veteran as presumed sound upon entry. While the examiner noted that a personality disorder as described at separation would not develop over a year of service as that type of disorder was rooted and pervasive since childhood, the examiner did not discuss whether major depressive disorder, nontheless, developed or had its onset during service given the Veteran's complaints in service. Therefore, a remand is necessary to obtain an opinion based upon the correct legal standard. Nonservice-Connected Pension Based on Countable Income Basic entitlement to pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (a)(3). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. However, welfare benefits, such as supplemental security income (SSI), are excludable from countable income for purposes of receipt of pension. 38 C.F.R. § 3.272. The Board has found that the Veteran is permanently and total disabled to establish basic eligibility for nonservice-connected pension. The Board finds, however, that a remand is warranted for the Agency of Original Jurisdiction (AOJ) to address, in the first instance, whether the Veteran met the income requirements for establishing entitlement to nonservice-connected pension. While the Veteran indicated in his application for pension, that he had no income other than SSI benefits, which are not countable for pension purposes, and a total net worth of $100.00, the appeal period runs from April 10, 2014. Thus, additional development may be needed to confirm that he did not receive additional income over the course of the appeal period. The matters are REMANDED for the following action: 1. Forward the record to an appropriate clinician to determine whether a current acquired psychiatric disorder is related to the Veteran's military service. The claims file must be reviewed by the examiner in conjunction with the examination. The examiner must opine whether major depressive disorder is related to service. Given that no acquired psychiatric disorder was clinically noted upon the Veteran's entry into military service and given the Board's finding that the presumption of soundness has not been rebutted with respect to an acquired psychiatric disorder, the examiner must opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran's major depressive disorder is related to complaints documented in service treatment records, or any other aspect of his military service, based on the presumption that he was sound at service entrance. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. The AOJ should conduct any development deemed necessary to address the question of whether the Veteran met the income requirements for the receipt of nonservice-connected pension benefits during the relevant appeal period. 3. After all development has been completed, the AOJ should readjudicate the appeal, to include the question of whether the Veteran's income was a bar to the receipt of nonservice-connected pension benefits. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.