Citation Nr: 0809988 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-00 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from October 30, 1990 to October 13, 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2007, the veteran testified at a Travel board hearing before the undersigned. FINDINGS OF FACT 1. The veteran served on active duty from October 30, 1990 to October 13, 1992, when he was honorably discharged; his DD Form 214 shows that he had no prior active or inactive service; his DD Form 214 also reflects that the separation authority was Army Regulation AR 635-200 PARA 16-5b; and the narrative reason for his separation that appears on the DD 214 is "LOCALLY IMPOSED BAR TO REENLISTMENT." 2. The veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); the veteran was not discharged for a disability adjudged service- connected without presumptive provisions of law; at the time of discharge, the veteran did not have a service-connected disability; the veteran does not currently have a compensable service-connected disability. 3. According to the information contained in the claims file, the veteran's original term of enlistment was 4 years. CONCLUSION OF LAW The veteran's military service does not meet threshold eligibility requirements for a permanent and total disability rating for pension purposes. 38 U.S.C.A. §§ 101, 1521 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.12a, 3.203, 3.314 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the. There are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has been held not to apply to claims based on allegations that VA decisions were clearly and unmistakably erroneous. Id. It has been held not to apply to claims that turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on interpretation of the law, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Court has also held that compliance with the VCAA is not required if additional evidence could not possibly change the outcome of the case. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). In another class of cases, remand of claims pursuant to VCAA is not required because evidentiary development has been completed. Wensch v. Principi, 15 Vet. App. 362, 368 (2001); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Although the United States Court of Appeals for Veterans Claims (Court) said in Wensch that VCAA did not apply in such cases, it may be more accurate to say that VCAA applied, but that its notice and duty to assist requirements had been satisfied. When it is clear that there is no additional evidentiary development to be accomplished, there is no point in remanding the case. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). During the drafting of the VCAA, Congress observed that it is important to balance the duty to assist against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. For example, wartime service is a statutory requirement for VA pension benefits. Therefore, if a veteran with only peacetime service sought pension, no level of assistance would help the veteran prove the claim; and if VA were to spend time developing such a claim, some other veteran's claim where assistance would be helpful would be delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Senator. Rockefeller). This is similar to the case at hand since the veteran does not meet service requirements. The issue turns on statutory interpretation. See Smith. Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (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.). As such, no further action is required pursuant to the VCAA. Pension VA nonservice-connected pension benefits are payable to a veteran who is permanently and totally disabled from a nonservice-connected disability, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he served in active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). In this case, there is another requirement for the veteran to be eligible for pension benefits. A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980 and any other person (officer as well as enlisted) 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 (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, for the purposes of this section, the shorter of the following periods: (1) twenty- four months of continuous active duty. Non-duty periods that are excludable in determining VA benefit entitlement (e.g. see 38 C.F.R. § 3.15) are not considered as a break in service for continuity purposes but are to subtracted from total time served; (2) The full period for which a person was called or ordered to active duty. See 38 C.F.R. § 3.12a (a). The minimum period of active duty requirement does not apply: (1) To a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) To a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) To a person with a compensable service-connected disability; (4) To the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) To benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a (d). The veteran served on active duty from October 30, 1990 to October 13, 1992, when he was honorably discharged. Therefore, the veteran served during a period of war for more than 90 days. See 38 C.F.R. § 3.3. However, as noted, the veteran's service is also covered by the provisions of 38 C.F.R. § 3.12a. The veteran did not serve the minimum period of active duty. The veteran served for less than 24 months of active duty. His DD Form 214 shows that he had no prior active or inactive service. His DD Form 214 also reflects that the separation authority was Army Regulation AR 635-200 PARA 16-5b and the narrative reason for his separation that appears on the DD 214 is "LOCALLY IMPOSED BAR TO REENLISTMENT." His separation code was KGF and reentry code was 3. The cited separation authority, AR 635-200 PARA 16-5b, indicates that the veteran was separated for his own convenience and it is a voluntary discharge. A reentry code of 3 means his reentry is not in the best interests of the military service. His enlistment term was 4 years, which he did not complete. The veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge). He was not discharged for a disability adjudged service-connected without presumptive provisions of law. At the time of discharge, the veteran did not have a service-connected disability. The veteran does not have a compensable service- connected disability. The veteran is not covered by any other exception listed in 38 C.F.R. § 3.12a(d). He does not currently have a claim pending for service connection. The Board emphasizes that it is not free to disregard governing laws and regulations that provide those threshold criteria bestowing basic eligibility to VA pension. As the veteran did not have the minimum period of active duty service, he is not entitled to VA pension benefits. Where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis. Therefore, a denial of the claim presented is mandated on that basis. Inasmuch as the appellant's service does not meet the threshold requirements for eligibility for VA pension benefits, his claim for basic eligibility for nonservice- connected disability pension benefits lacks legal merit and his claim must be denied. Sabonis, supra. ORDER Entitlement to a permanent and total disability rating for pension purposes is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs