Other conditions decisions — 2008

The veteran's chronic infrapatellar tendonitis of the right knee results in minimal degenerative changes, but does not result in moderate sublaxation or lateral instability; frequent episodes of locking, pain, or effusion into the joint; limitation of flexion of the leg to 30 degrees or less; limitation of extension of the leg to 15 degrees or less; or degenerative arthritis of two or more major joint groups or two or more minor joint groups with incapacitating episodes. The criteria for entitlement to a rating in excess of 10 percent have not been met.

The Board denied an earlier effective date for the award of nonservice-connected pension benefits, finding no record or communication officially documented to have been received prior to January 25, 2002 that can be construed as a claim for such benefits.

The Board dismissed the appellant's claim for an earlier effective date of October 1, 1989 for the grant of DIC benefits as a matter of law due to lack of proper appeal and no allegation of clear and unmistakable error (CUE).

The veteran's appeal is being remanded for additional development, including obtaining medical records and providing a VA examination to determine the etiology of his respiratory disorder.

The Board denied the appellant's request for a waiver of recovery of an overpayment of pension benefits in the amount of $19,207.00 plus interest because it was not received within 180 days after notification.

The veteran's claim for service connection for drug abuse is denied as a matter of law.

The Board denied the veteran's claims for a higher initial rating for residuals of a right scapula injury and service connection for degenerative joint disease, finding that his disability did not meet the criteria for a compensable evaluation under applicable VA regulations.

The Board has ordered the case to be remanded for additional development, including sending proper notice regarding new and material evidence requirements and addressing whether new and material evidence has been received to reopen the appellant's previously denied claim.

The Board has found new and material evidence to reopen the claim for service connection for spondylolisthesis, L5-S1 with spina bifida. However, the weight of medical evidence is against a finding that the veteran's current back disability was related to his active service.

The veteran's temporomandibular malfunction secondary to neuritis and dislocation is currently rated at 30 percent, which is the maximum rating available under Diagnostic Code 9905. The disability does not meet or approximate criteria for a higher evaluation.

The veteran's income exceeded the maximum annual pension limits for nonservice-connected pension benefits, as determined by law. Therefore, his claim is denied.

The Board dismissed the appeal due to the appellant's death.

The Board denied the veteran's claim for service connection for a peptic ulcer, finding that there was no evidence of an in-service onset or relationship to service. The veteran's claim for nonservice connected disability pension is remanded due to failure to issue a Statement of the Case.

The Board is remanding the case for further development, including adjudicating a claim of service connection for the cause of the veteran's death and considering whether DEA benefits are eligible based on exposure to Agent Orange. The appellant must be given an opportunity to make arguments regarding these issues.

The Board found that the effective date of removing the veteran's dependent spouse from his pension award was proper, based on the law and not evidence.

The veteran's claim for service connection for a right front tooth disability for dental treatment purposes was denied prior to August 9, 2007. From that date, the claim is granted as he has been receiving a total disability rating based on individual unemployability (TDIU).

The veteran's application for reimbursement of $144.00 for tests taken on July 19, 2003 was denied as the request was received more than one year after the tests were taken.

The veteran's daughter is not eligible for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code because she had already reached her 26th birthday prior to the veteran's death.

The veteran's application for educational assistance benefits was received by the RO on May 8, 2006. The VA can pay the appellant's educational benefit starting May 8, 2005, because his claim for such benefits was received more than one year after his enrollment began.

The appellant does not have the requisite service to qualify for VA nonservice-connected disability pension benefits.