Citation Nr: 0811875 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-06 092 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to basic eligibility for VA disability compensation benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The appellant has verified service in the United States Merchant Marine from January 29, 1946 to March 2, 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a January 2005 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction of the appellant's claims file is currently with the VARO in St. Petersburg, Florida. In January 2008, the appellant testified during a hearing before the undersigned Acting Veterans Law Judge sitting at the St. Petersburg VARO. In March 2008, the undersigned Acting Veterans Law Judge granted the appellant's motion to advance the appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The appellant's DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects service as a Merchant Marine from January 29, 1946 to March 2, 1946. 2. The appellant did not serve as a crew member aboard a merchant vessel during the period of armed conflict, December 7, 1941, to August 15, 1945. 3. The appellant is not shown to have had active military, naval or air service, and is not an individual or a member of a group considered to have performed active military, naval or air service. CONCLUSION OF LAW The criteria for recognition of the appellant as having basic eligibility for VA disability compensation benefits have not been met. 38 U.S.C.A. § 101(10), (24) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.6, 3.7, 3.203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to render a decision on the appellant's claim on appeal has been accomplished. Through notice letters in September 2004 and April 2005, the appellant was notified of the legal criteria governing his claim and the evidence needed to substantiate his claim. Also, in the September 2004 notice letter, the appellant was notified that the RO was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO requested that the appellant identify any medical providers from whom he wanted the RO to obtain and consider evidence. Additionally, the appellant was requested to submit evidence in his possession in support of his claim. Thus, the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)) Additionally, in the April 2005 letter, the RO notified the appellant that his claim for compensation and pension benefits had been denied because the evidence did not substantiate that he was a Merchant Marine seamen who served under the United States Coast Guard, naval Transportation Service or Army Transportation Service in an active oceangoing vessel during the period from December 7, 1941, to August 15, 1945. The RO also notified the appellant that his DD-214 indicated that he had served in the Merchant Marine from January 29, 1946 to March 2, 1946. The RO provided addresses of military and non-military facilities the appellant could write if he wished to contest the service dates noted on his DD-214. See e.g., Palor v. Nicholson, 21 Vet. App. 325, 328 (2007) (the VCAA applies to the issue of veteran status and VA must tailor its notice to the claimant, thus informing him/her of the specific evidence and information required to substantiate that element of the claim). The Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. Additionally, the RO has provided the appellant notice with respect to effective dates and rating criteria provisions. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that while the complete notice required by the VCAA was not necessarily provided prior to the RO initially adjudicating the appellant's claim, the "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. Here, the Board does not find that the essential fairness of the adjudication has been affected. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Furthermore, the Board points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal decided herein. The appellant has submitted a copy of his DD Form 214 reportedly issued to him by the United States Coast Guard. He has also submitted an Honorable Discharge certificate associated with his service in the United States Coast Guard-Merchant Marine. In addition, the appellant has submitted lay statements from his sister and brother in support of his claim as well as medical records associated with his treatment at the United States Marine Hospital in Portland, Maine in March 1946. Furthermore, at his hearing the appellant identified other merchant seamen who had served with him onboard the SS Cedar Mountain but testified that these individuals were no longer alive. Otherwise, neither the appellant nor his representative has alleged that there are any outstanding records probative of his service in the Merchant Marine that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2007). The term "active military, naval, or 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 the line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Service in the active military, naval, or air service includes service in the United States Armed Forces. See 38 U.S.C. § 101(10) (in pertinent part defining "Armed Forces" as "United States Army, Navy, Marine Corps, Air Force, and Coast Guard."). Merchant Marines are not included in the statutory definition of Armed Forces. With regard to service as a merchant seaman, the Board notes that the Secretary of the Air Force made a determination on January 19, 1988, that the service of American Merchant Marines in oceangoing service during the period of armed conflict, from December 7, 1941, to August 15, 1945, shall be considered active duty for the purposes of all laws administered by VA. See 53 Fed. Reg. 2,775-02 (Feb. 1, 1988). See also 38 C.F.R. § 3.7(x)(15) (2007) (certifying as "active military service" the service of American Merchant Marines in Oceangoing Service during the period from December 7, 1941, to August 15, 1945). To be eligible for VA benefits under this determination, each claimant is required to demonstrate by the following eligibility criteria that he or she: 1. Was employed by the War Shipping Administration or Office of Defense Transportation or their agents as a merchant seaman documented by the U.S. Coast Guard or Department of Commerce (Merchant Mariner's Document/Certificate of Service), or as a civil servant employed by the U.S. Army Transport Service or the Naval Transportation Service; and, 2. Served satisfactorily as a crew member during the period of armed conflict, December 7, 1941, to August 15, 1945, aboard, (a) merchant vessels in oceangoing, i.e., foreign, intercoastal, or coastwise service and further to include "near foreign" voyages between the United States and Canada, Mexico, or West Indies via ocean routes, or; (b) public vessels in oceangoing service or foreign waters. 53 Fed. Reg. 2,775-02; see also Frasure v. Principi, 18 Vet. App. 379, 386 (2004). VA's determination of whether a claimant's service meets the threshold statutory requirements usually is dependent upon service department records verifying the character of a claimant's service. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board notes that service department certifications for purposes of veteran status are conclusive and binding on VA. See Palor, 21 Vet. App. at 332, citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The Board notes that VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) The evidence is a document issued by the United States service department; (2) The document contains needed information as to length, time and character of service; and, (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). The appellant submitted a DD Form 214 and a Certificate of Discharge. With respect to the DD Form 214, the appellant testified the form was issued to him by the United States Coast Guard. The Board has no reason to doubt the appellant's veracity with regard to the source of the DD Form 214, even though it is not clear from a review of the document that it was in fact issued by the United States Coast Guard. Otherwise, the Board finds the documents to be genuine and reflective of the length, time and character of the appellant's service. The appellant contends that he served in the Merchant Marine from December 7, 1941 to March 2, 1946 on the SS Cedar Mountain, a Maritime Commission type T2 style tanker. He points to his Certificate of Discharge as proof of his service, and that his DD Form 214 contains errors. He also contends that he was hospitalized for three months due to injury incurred during his period of service in the Merchant Marine. In October 2002, the appellant was notified by the United States Coast Guard that medical records associated with treatment of Merchant Marines at United States Public Hospitals were maintained at the Public Health Service (PHS) Health Data Center, in Baton Rouge, Louisiana. The appellant subsequently obtained treatment records from the PHS Health Data Center and submitted these records to the RO. These records reflect the appellant's treatment at the United States Marine Hospital in Portland, Maine from March 15, 1946 to March 27, 1946. In particular, upon admission, it was noted that the veteran had developed an ear ache in his right ear 18 days previously and that this later subsided. The appellant then developed a cold six days later and on the seventh day he began to experience an ache in his right ear and both ears began to drain-the initial drainage reported as blood. The drainage was noted to have later turned yellowish in color. The examiner also noted that the left ear had drained off and on since age 9. Examination of the ears revealed the left ear drum completely gone and the right ear drum almost completely gone. The diagnosis was chronic supportive otitis media of the left ear, acute supportive otitis media of the right ear, and perforation of bilateral tympanic membranes due to infection. In October 2004, the RO received statements from the appellant's sister and brother. The appellant's sister noted that to the best of her knowledge the appellant punctured both of his eardrums in 1942 a result of using a chipping hammer while aboard the SS Cedar Mountain. She added that as a result of the injury, the appellant was taken to the Portland Maine Marine Hospital where he was hospitalized for three months and treated with Penicillin. The statement from the appellant's brother also noted similar facts, in particular, that the appellant was in the Merchant Marine in 1941 or 1942, that his ears were injured while using an air hammer, and that he was hospitalized for three months in the Marine Hospital in Portland, Maine. The appellant has submitted a copy of his Honorable Discharge certificate. The certificate documents the appellant's service in the United States Coast Guard and notes his discharge on March 2, 1946. It does not otherwise identify the appellant's date of entry into the Merchant Marine. The certificate also notes the following, Issued pursuant to [Public Law] 95-202 and/or [Public Law] 105-368 for service in the American Merchant Marine between December 7, 1941 and December 31, 1946. Here, the primary question on appeal is whether the appellant is a member of a group of Merchant Marines that has been recognized in a legislative or regulatory provision as being eligible for veteran's benefits. 53 Fed. Reg. 2,775-02; 38 C.F.R. § 3.7(x)(15). Although the Secretary of the Air Force, pursuant to authority delegated by the Secretary of Defense, has certified a group of members of the Merchant Marine who demonstrated active-duty service between December 7, 1941, and August 15, 1945, the appellant's DD-Form 214 issued to him by the United States Coast Guard reflects service from January 29, 1946 to March 2, 1946. The DD Form 214 does not otherwise reflect dates associated with the certified group, that is, dates that fall within the eligibility period of December 7, 1941, to August 15, 1945. The Board has also considered the Honorable Discharge certificate submitted by the appellant. While the certificate notes that it was issued for service in the American Merchant Marine between December 7, 1941 and December 31, 1946, the Board interprets this to mean recognition for any period of service in the Merchant Marine between December 7, 1941 and December 31, 1946, as compared to service encompassing the entire time period. The Board notes that on August 11, 1999, the Secretary of the Air Force determined that the service of the group known as "American Merchant Marine Mariners Who Were in Active Ocean-Going Service" during the period of August 15, 1945 to December 31, 1946, were not to be considered to have served on "active duty" under the provisions of Public Law 95-202 for the purposes of all laws administered by VA. See 64 Fed. Reg. 48,146-02 (Sept. 2, 1999). Thus, the appellant's reliance on the Honorable Discharge certificate as evidence of his service with the Merchant Marine beginning December 7, 1941 must fail. The Board has also considered the statements of the appellant's sister and brother and their recollections of the appellant's service and medical treatment. The appellant has testified that he incurred an injury to his ears sometime in 1943 and that such injury progressed to the point that in 1946 he was treated for three months at a hospital in Portland, Maine. The hospital was identified by the appellant as East Darren Veterans Hospital or East Deering Hospital. The appellant's sister and brother have reported that following his alleged injury aboard the SS Cedar Mountain, the appellant was hospitalized at the United States Marine Hospital in Portland, Maine. Whether by the appellant's reference to East Darren Veterans Hospital or East Deering Hospital he actually means the United States Marine Hospital is not clear. Nonetheless, the only available medical records associated with the appellant's Merchant Marine service are from the United States Marine Hospital. These records do not reflect treatment for a bilateral ear disability for three months but only for 12-13 days. Furthermore, the appellant has not otherwise contended that he was hospitalized more than once while in the Merchant Marines. Therefore, having reviewed the complete record, the Board finds that the evidence does not support that the appellant served in the Merchant Marine between December 7, 1941 and August 15, 1945. Congress has clearly defined what is required for eligibility for VA benefits, and the Board has no authority to extend or expand that definition. Here, there is no provision of law which accepts the status of a Merchant Marine who served for a period other than December 7, 1941, to August 15, 1945, as valid active military service for VA benefit purposes. While the appellant has contended that the dates of service noted in his DD Form 214 are incorrect, he has not provided any other evidence that would lead the Board to believe these dates, as reported by the United States Coast Guard, are incorrect. In cases such as this, where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In view of the fact that the appellant has not been found to have had qualifying military service, the Board finds that he does not have basic eligibility for VA disability compensation benefits and therefore his appeal must be denied. ORDER Entitlement to basic eligibility for VA disability compensation benefits is denied. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs