Citation Nr: 0812090 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-07 850 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from March 3, 1975 through April 1, 1975 and from August 8, 1979 through September 18, 1979. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision by the RO. In March 2007, the RO denied the veteran's claims of entitlement to service connection for Osgood-Schlatter disease in each knee. In a letter, dated April 9, 2007, the veteran was notified of those decisions, as well as his appellate rights. However, the RO did not receive a notice of disagreement with which to initiate an appeal. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002 and Supp. 2007); 38 C.F.R. § 20.1103 (2007). Accordingly, the Board has no jurisdiction over those issues and neither will be considered below. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2007); 38 C.F.R. § 20.101 (2007). FINDINGS OF FACT 1. The veteran had less than 90 days of active honorable service. 2. The veteran was not discharged from service during a period of war because of a service-connected disability. CONCLUSION OF LAW The criteria for a permanent and total rating for pension purposes have not been met. 38 U.S.C.A. §§ 101(29), 1521 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.2, 3.3 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks VA pension benefits due to nonservice- connected disability which is permanent and total in nature. However, the evidence shows that he does not have the requisite amount of wartime service, nor was he discharged from wartime service due to service-connected disability. Absent such evidence, he cannot meet the criteria for a permanent and total disability rating for pension purposes. Accordingly, the appeal is denied. The law authorizes the payment of a nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled due to disease or injury not a result of his own misconduct. A veteran meets the service requirements if he 1) served in the active military, naval or air service for ninety (90) days or more during a period of war; 2) or if he had active military service for an aggregate of ninety (90) days or more in two or more separate periods of service, during more than one period of war; or 3) if he was discharged from military service during a period of war because of service-connected disability. 38 U.S.C.A. §§ 1521 38 C.F.R. §§ 3.3. In this case, the veteran had service during the Vietnam era from March 3, 1975 through April 1, 1975, a period of less than 90 days. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2, 3.3. He had no other wartime service; and, thus, he did not serve long enough during a period of war so that he could qualify for a permanent and total disability rating for pension purposes. The veteran acknowledges that he did not meet the length of service requirement. However, he contends that he meets the wartime service criteria because he was discharged from service during a period of war for disability which should have been service-connected. He states that when he entered service in March 1975, he had Osgood-Schlatter disease in each knee. He contends that such disability was aggravated by service and that service connection should have been established on that basis. 38 U.S.C.A. § 1110 (West 2002 and Supp. 2007); 38 C.F.R. § 3.303, 3.306(a) (2007). Therefore, he maintains that he does, in fact, meet the wartime service criteria. The Board disagrees. Although the report of the veteran's February 28, 1975 service entrance examination is negative for any complaints or clinical findings of disability in either knee, nine days after his entry on active duty, he was treated for bilateral chondromalacia of the patella with Osgood-Schlatter disease. Following work-up, including an examination performed in conjunction with Medical Board proceedings, it was determined that such disease had been present prior to the veteran's entry on active duty and that he had not met the health standards for entry into the military. It was further determined that during service, there had been no increase in the underlying pathology in either knee, and that therefore, there had been no aggravation during service. Consequently, the veteran was given a medical discharge on April 1, 1975. In a March 2007 rating decision, the RO determined that although Osgood-Schlatter disease had been present when the veteran entered service, that disorder had not been aggravated by service. Consequently service connection was denied. As noted above, the veteran did not appeal that decision, and it became final. Therefore, he was not discharged from service during a period of war due to service-connected disability. In light of the foregoing, the veteran cannot meet the wartime service criteria for a permanent and total disability rating for pension purposes. The law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In arriving at this decision, the Board notes that generally, VA has a duty to assist the veteran with the development of his appeal. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. § 3.159 (2007). Indeed, prior to its June 2005 denial of the veteran's claim for VA pension benefits, the RO notified the veteran of the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that the veteran was expected to provide; and the information and evidence VA was to obtain on the veteran's behalf. The RO also advised the veteran that he should provide any additional evidence in his possession that pertained to his claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, since the law and not the facts is dispositive of the issue in this case, no amount of development would allow the veteran to prevail. Indeed, such development would serve no useful purpose and need not be performed in order to meet VA's statutory duty to assist the veteran in the development of his appeal. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VA's statutory duty to notify and assist the veteran in the development of his claims does not affect matters on appeal from the Board when the question is limited to statutory interpretation.) 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. ORDER A permanent and total rating for pension purposes is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs