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