Citation Nr: 1122190	
Decision Date: 06/08/11    Archive Date: 06/20/11

DOCKET NO.  09-33 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota

THE ISSUE

Entitlement to basic eligibility for nonservice-connected pension benefits. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from July 1982 to July 1985.

This matter comes to  Board of Veterans' Appeals (Board) on appeal from a May 2009 RO decision by which the RO determined that the Veteran was not eligible to receive VA pension benefits.

The issues of entitlement to service connection for an acquired psychiatric disorder to include but not limited to posttraumatic stress disorder (PTSD) and bipolar disorder, entitlement to service connection for bilateral hearing loss, entitlement to service connection for a facial scar, and entitlement to service connection for tinnitus have been raised by the record in statements of the Veteran and his representative, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.


FINDING OF FACT

The Veteran did not have active military service during a period of war.


CONCLUSION OF LAW

The Veteran's military service does not meet threshold service eligibility requirements for VA pension benefits.  38 U.S.C.A. §§ 101(2), 1521(a) and (j), 5107(a) (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In this case, VCAA notice is not required because the issue presented involves a claim for nonservice-connected pension benefits where the claimant did not serve on active duty during a period of war.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).

Discussion

VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from non-service-connected disabilities which are not the result of willful misconduct.  38 U.S.C.A. § 1521(a).  Such benefits have a number of requirements, including that a veteran must have served in the active military, naval, or air service for 90 days or more during a period of war.  38 C.F.R. § 3.3(a)(3).

The Veteran's Certificate of Release or Discharge from Active Duty, DD Form 214, shows that he served on active duty from July 1, 1982 through July 29, 1985.

The sole question before the Board is whether the Veteran has established threshold eligibility for a nonservice-connected pension.  Eligibility for VA pension benefits generally requires an initial showing that the claimant is a veteran who served on active duty for at least 90 days during a period of war.  38 U.S.C.A. § 1521; 
38 C.F.R. §§ 3.2, 3.314.  Here, the evidence fails to show that the Veteran's period of service was during a period of war.  See 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2 (the "Vietnam Era ended on May 7, 1975, and the Persian Gulf War began on August 2, 1990).  The Veteran's service fell between two periods of war and did not overlap with either one.

As a matter of law, the Veteran did not serve during a period of war, and his appeal for nonservice-connected pension benefits must be denied, since he does not meet the threshold statutory requirement for eligibility for that benefit.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to basic eligibility for nonservice-connected pension benefits is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs