Citation Nr: 1120922 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-32 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to non-service connected pension benefits. 2. Entitlement to special monthly pension benefits. ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from September 1987 to April 1989. These matters come before the Board of Veterans' Appeals (Board) from an April 2008 determination of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran had active service from September 1987 to April 1989. 2. The Veteran did not serve in the active military, naval, or air service for at least 90 days during a period of war, and was not discharged from service due to disability. 3. The Veteran is less than credible with regard to any contention of active service during a period of war. CONCLUSIONS OF LAW 1. The criteria for eligibility for nonservice connected pension benefits have not been met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6 (2010). 2. The criteria for special monthly pension have not been met 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims such as this one. Mason v. Principi, 16 Vet. App. 129, 131 (2002) (finding that a veteran did not serve on active duty during a period of war and was not eligible for nonservice-connected pension benefits; because the law as mandated by statute, and not the evidence, is dispositive of the claim; the VCAA is not applicable.) As such, no further action is required pursuant to the VCAA. Legal criteria VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521(a). The provisions of 38 C.F.R. § 3.3 (2010), in pertinent part, state that pension for veterans is a benefit payable by the VA to veterans of a period of war because of nonservice-connected disability or age. 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 (2010); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). A veteran of any war means any veteran who served in the active military, naval or air service during a period of war as set forth in 38 C.F.R. § 3.2, and a period of war means the periods described in 38 C.F.R. § 3.2. 38 C.F.R. §3.1(e), (f). The qualifying periods of war for this benefit include the Persian Gulf War . The Persian Gulf War began on August 2, 1990 and continues through the date to be prescribed by Presidential proclamation or law. 38 U.S.C.A. §101 (West 2002); 38 C.F.R. § 3.2 (i) (2010). Basic entitlement exists if a veteran: (i) Served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or (ii) Served in the active military, naval or air service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at 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 (38 U.S.C. 1521(j)); or (iii) Served in the active military, naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or (iv) Served in the active military, naval or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)); and (v) Meets the net worth requirements under § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in § 3.23; and (vi) (A) Is age 65 or older; or (B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willful misconduct.38 C.F.R. § 3.3 (a)(3). A Veteran receiving nonservice-connected pension may receive pension at a higher, special monthly rate if he needs regular aid and attendance of another individual to conduct routine activities necessary for daily life, or if he is permanently housebound or has a permanent and total disability plus a disability rated as 60 percent disabling. 38 C.F.R. § 3.351(b) and (d). Analysis The record does not reflect that the Veteran served on active duty during a period of war. The Veteran's DD Form 214 reflects that the Veteran had active service from September 1987 to April 1989. It also reflects that the Veteran had no prior active service. The Veteran has given contradictory and confusing statements as to his service. In addition to the active service noted above, he reported on his claim form that he entered active service on March 20, 1996 and left active service on December 1, 1994. He stated that he entered Reserve service on March 2, 1995 and left on March 7, 1996. He also stated that "getting sprayed with chemicals in the Gulf War" may have caused him to later have renal failure. (See claims form, Section III.) The Veteran's military personnel records reflect that in April 1989, the Veteran was found to have a hardship which was disqualifying for reenlistment. The records further reflect that he was transferred to the Ready Reserve effective September 21, 1994 due to the hardship no longer existing. (See November 1994 Naval Reserve Personnel Center record.) An enlistment/reenlistment document reflects that the Veteran re-enlisted in the Naval Reserve in March 1995. At that time, it was noted that he had one year and seven months of total active military service. Thus, the personnel records reflect that the Veteran did not have service from his separation in April 1989 to March 1995. After that time, he enlisted in the Naval Reserve and was transferred to the individual ready reserve in March 1996 due to unsatisfactory drill participation. (See Naval Reserve Administrative Remark record.) There is no objective evidence of record that the Veteran served on active duty since April 1989. Moreover, the Board finds that the Veteran is less than credible with regard to any such service. Not only do the military personnel records reflect no such service, but the Veteran noted on a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in October 2008, that he worked full time as a civilian from April 1995 through December 2004, when he became disabled. As noted above, the Persian Gulf War began on August 2, 1990, after the Veteran separated from active service. Thus, the evidence is against a finding that the Veteran had active service during a period of war. In addition, the Veteran does not contend, and the record does not reflect, that he was discharged from service due to a disability adjudged service-connected. In light of the foregoing, the Veteran does not meet the threshold/basic eligibility requirements for nonservice-connected pension benefits. As the Veteran is not entitled to receive nonservice-connected pension, he is not eligible to receive nonservice-connected pension at a higher, special monthly rate under 38 C.F.R. § 3.351. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to non-service connected pension benefits is denied. Entitlement to special monthly pension benefits is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs