Citation Nr: 0707609 Decision Date: 03/14/07 Archive Date: 03/20/07 DOCKET NO. 04-03 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to nonservice-connected VA pension benefits. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Yim, Associate Counsel INTRODUCTION The veteran served on active duty from August 1973 to October 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board concludes that the threshold requirement of minimum wartime service for the purposes of consideration for nonservice-connected pension benefits is shown. However, further evidentiary development is warranted on whether nonservice-connected pension is warranted and on the issue of service connection for hepatitis C. These matters are remanded to the RO, via the Appeals Management Center in Washington, D.C. FINDING OF FACT The veteran served on active duty from August 1973 to October 1978. CONCLUSION OF LAW The threshold requirement of a minimum 90 days of active service during a period of war, for the purposes of eligibility for nonservice-connected pension benefits, is met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Nonservice-Connected Pension To establish entitlement to nonservice-connected pension benefits, a claimant must show (1) that he served during a period of war for 90 days or more (or was discharged or released from service during a period of war for a service- connected disability); (2) that he is permanently and totally disabled; and (3) that his income is below a certain standard. 38 U.S.C.A. § 1521; see also 38 U.S.C.A. § 1522. The term "period of war" is defined to include the Vietnam era. 38 U.S.C.A. § 101(11), (29) (West 2002); 38 C.F.R. § 3.2(f). Under 38 U.S.C.A. § 1521 and 38 C.F.R. § 3.3, pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of the veteran's willful misconduct. A veteran means a person who served in the active military, naval or air service. 38 C.F.R. § 3.1(d). Active military, naval and air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6(a). The Board finds that the veteran does meet the threshold eligibility requirement for nonservice-connected pension benefits, based on active service for a minimum 90 days during a period of war. His active duty period includes more than 90 days of service during the Vietnam era, which, in all cases, is that from August 5, 1964, and ending on May 7, 1975, and, for veterans who served in the Republic of Vietnam, is from February 28, 1961, and ending on May 7, 1975. At this juncture, the Board need not decide whether law and regulations concerning notice and evidentiary development requirements have been complied with on the issue of entitlement to nonservice-connected pension benefits. That is so because the Board is taking action favorable to the veteran by deciding only the limited issue of threshold eligibility for such benefits based on requisite wartime service and remanding the matter for further evidentiary development, without deciding the merits of the claim. Such action poses no material prejudice to him at this juncture. See generally Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER The threshold wartime service requirement, for the purposes of consideration for nonservice-connected pension benefits, is met. REMAND Service Connection - Hepatitis C The veteran does not allege that any specific incident or injury during service is the cause of hepatitis. Rather, during this appeal, he said only that his risk factors are drug use and high-risk sexual activity. VA clinical records dated from the 1990s forward reflect long-term addiction to illegal drugs, and in particular, to cocaine, and multiple failed attempts at rehabilitation at numerous VA medical facilities. Also, while the veteran filed a service connection claim specifically for hepatitis C, VA clinical records seem reflect diagnoses of both hepatitis C and hepatitis B. Further, it is unclear, based on the record to date, on what laboratory findings the diagnosis of hepatitis C and/or hepatitis B was/were made. And, based on recent VA clinical records, it is not apparent that the veteran's hepatitis is currently symptomatic or active. Further, the record reflects that the veteran was treated at numerous VA medical facilities over the years. The claims file reflects records from several VA facilities, but it appears that the file might not reflect complete VA clinical records from all sources (that is, records from all locations). Note that recent VA clinical records from Atlanta, Georgia, reflect prior treatment at medical facilities in Dublin, Georgia; Tampa, Florida; Bay Pines, Florida; South Texas; Houston, Texas; Central Arkansas; Augusta, Georgia; and "VA Heartland-West." Also note that recent VA clinical records from Murfreesboro, Tennessee, reflect treatment in facilities located in Richmond, Virginia; Salisbury, North Carolina; and "Stapleton." Older VA clinical records from Topeka, Kansas, refer to treatment at the Kansas City VA medical facility. While this case is on remand status, complete copies of VA clinical records, regardless of source (location), should be obtained and associated with the claims file. VA is deemed to be in constructive possession of VA clinical records even if they are not physically located in the claims file. They must be associated with the claims file before the case is readjudicated. Bell v. Derwinski, 2 Vet. App. 611, 612-613 (1992). Securing VA medical records is part of the VA's duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The missing VA clinical records could include diagnostic or laboratory testing results that support the diagnosis of hepatitis as claimed (whether hepatitis C or hepatitis B). Nonservice-Connected Pension As discussed above, the veteran had requisite active duty during a period of war for consideration for nonservice- connected pension benefits. The veteran apparently was released from prison in late 2003, and is not gainfully employed full time, although he did report in late 2003, apparently after release from prison (see Murfreesboro, Tennessee, VA clinical records) that he earned some money as a tour guide and from illegal activity. The Board recognizes that the RO denial of nonservice- connected pension was based primarily on its determination that the veteran has been unemployed due to his incarceration; that hepatitis is due to willful misconduct; and that HIV-positive status and psychiatric problems are not shown to be severe enough to prevent the veteran from pursuing employment. However, recent VA clinical records reflect other medical problems, to include those that have been characterized as "ulcers" on the extremities; rashes; and hernia. Further, as discussed above, the record apparently is incomplete in terms of VA clinical records. The Board cannot now conclude that any missing records would not contain information that might have bearing on the issue of whether the veteran is permanently and totally disabled due to nonservice-connected disabilities not the result of willful misconduct. Therefore, the Board concludes that the most appropriate disposition of the pension claim is to defer adjudication of the merits of the claim pending further evidentiary development. After ensuring that missing clinical records are obtained, a VA medical examination is warranted to determine whether the veteran is permanently and totally disabled due to disabilities that are not the result of willful misconduct. Accordingly, the appeal is REMANDED for the following actions: 1. Advise the veteran that he may submit any information or evidence, lay or medical, not already of record and which he believes might be pertinent to his hepatitis or nonservice-connected pension claims. If any such evidence or information exists, but he desires VA assistance to secure them, then he must identify the sources of such information or evidence. If he does so, then assist him in further developing his claims consistent with the duty to assist. Also provide the veteran notice consistent with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Ensure that complete copies of all VA clinical records, regardless of location of the VA medical facility, are obtained and associated with the claims file. 3. After completing the above, schedule the veteran for a VA medical examination to determine what diagnosis or diagnoses is/are warranted, and to determine whether the veteran is permanently and totally disabled due to disabilities that are not the result of willful misconduct. 4. After completing the above, readjudicate both issues. If the benefit sought remains denied, then issue a Supplemental Statement of the Case and afford the veteran and his accredited service representative an opportunity to respond to it. Then, if in order, return the appeal to the Board. The veteran is advised that the failure to appear for a VA medical examination, if scheduled, could result in a denial of his claim unless good cause is shown. 38 C.F.R. § 3.655 (2006). He has the right to submit additional evidence and argument on the matter(s) remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded by the Board or the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs