Citation Nr: 1045908 Decision Date: 12/08/10 Archive Date: 12/20/10 DOCKET NO. 09-03 426A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether the appellant has basic eligibility for Department of Veterans Affairs (VA) compensation benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and A.L. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The appellant was in the United States Naval Reserve from March 24, 1979 to April 1, 1979. A July 2006 record from the Military Sealift Command indicates that the appellant was a civilian mariner who resigned in February 1990. This issue comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that decision, the RO denied eligibility for VA compensation benefits. In September 2010, the appellant testified before the undersigned at a Board hearing. A transcript of the hearing has been associated with the file. FINDINGS OF FACT 1. The appellant served in the Naval Reserve from March 24 to April 1, 1979 and had no period of active duty service. He did not incur a disability during a period of active duty for training or inactive duty for training. 2. The appellant also was a civilian with Military Sealift Command (Merchant Marines) from October 1987 to February 1990. 3. The appellant was not a member of the American Merchant Marine in Oceangoing Service during the Period of Armed Conflict, December 7, 1941, to August 15, 1945. 4. The appellant is not considered to have performed active military, naval, or air service for purposes of VA benefits. CONCLUSION OF LAW The criteria for recognition of the appellant as having basic eligibility for VA benefits are not met. 38 U.S.C.A. § 101 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.6, 3.7 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See, Sabonis v. Brown, 6 Vet. App. 426, 430 ( 1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5- 2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As this issue hinges on whether the appellant has requisite service, the law is dispositive of this appeal. VCAA notice is not applicable. See, Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis, 6 Vet. App. (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). No further action is required pursuant to the VCAA. The appellant has contended that he incurred a psychiatric disability while serving as a civilian in the Merchant Marines. In a November 2005 claim, he said he was in the United States Naval Reserve from March 24, 1979 to April 1, 1979 and said he had a mental disorder aboard a ship from September 1989 to October 1989. In a December 2006 statement, the appellant said he was merchant seaman with the Navy. A June 1990 letter from Military Sealift Command shows the appellant was employed from October 1987 to February 1990. A December 2008 Personnel Information Exchange System (PIES) response confirmed the appellant was in the United States Naval Reserve from March 14, 1979 to April 1, 1979. There was no active duty service. The appellant does not claim and the record does not reflect that he incurred disability during active duty for training or inactive duty for training in this brief period of Reserve service. Eligibility for VA benefits is based on statutory and regulatory provisions that define an individual's legal status as a Veteran of active military, naval or air service. See 38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R. §§ 3.1(d), 3.6 (2010). In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits. See 38 C.F.R. § 3.7 (2010). Active military, naval or air service includes three things: 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 the line of duty; and any period of inactive duty during which the individual was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during the training. 38 U.S.C.A. § 101 (24). Under Public Law No. 95-202, § 401, 91 Stat. 1433, 1449-50 (Nov. 23, 1977) [P.L. 95-202], the service of certain groups who rendered service to the Armed Forces of the United States shall be considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs" if the Secretary of Defense designates the group for such consideration based upon the factors listed in the statute. The Secretary of Defense delegated these determinations to the Secretary of the Air Force, whose determinations can be found under 38 C.F.R. § 3.7. 38 U.S.C.A. § 106 (West 2002). Under 38 C.F.R. § 3.7, active military service for individuals in the American Merchant Marine includes only oceangoing service during periods of armed conflict from December 7, 1941, to August 15, 1945. 38 C.F.R. § 3.7(x)(15) (2010). Also, United States Merchant Seamen who served on blockade ships in support of Operation Mulberry during World War II and American Merchant Marines who were in Oceangoing Service during the period of armed conflict from December 7, 1941, through August 15, 1945, are considered to have had active service. 38 C.F.R. § 3.7(x)(14), (15) (2010). In this case, the appellant does not contend that he had qualifying service from December 1941 to August 1945; rather, he asserts that his service in the Merchant Marines during peacetime from 1989 to 1990 should considered "active military service." However, the Board is bound by the law and regulations, and there is no provision of law which accepts such status as valid active military service for VA benefits purposes. In view of the fact that the appellant had no qualifying military service, basic eligibility for VA compensation benefits have not been met. Therefore, because the law is dispositive of the issue on appeal, the claim is denied because of lack of entitlement under the law. See, Sabonis, 6 Vet. App. 426. ORDER The appellant fails to meet basic eligibility for VA compensation benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs