Citation Nr: 1122402	
Decision Date: 06/09/11    Archive Date: 06/20/11

DOCKET NO.  10-11 938	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a non-service connected pension.  


ATTORNEY FOR THE BOARD

John Francis, Counsel 


INTRODUCTION

The appellant reported service in the Cambodian Army from October 1970 to September 1975. 

This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In January 2010 substantive appeal, the appellant requested a hearing before the Board sitting in Washington, D.C., but he withdrew the request in writing in October 2010.   38 C.F.R. § 20.702 (e) (2010). 


FINDING OF FACT

The appellant did not perform active military service in the Armed Forces of the United States.  


CONCLUSION OF LAW

The appellant is not a veteran for the purposes of eligibility for a non-service connected pension.  38 U.S.C.A. §§ 101, 106, 107, 1521 (West 2002); 38 C.F.R. §§ 3.7, 3.203 (2010).  


REASONS AND BASES FOR FINDING AND CONCLUSION

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).  

In this case, notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). 

The appellant contends that he is eligible for a non-service connected pension based on service in the Cambodian Army.  He contends that he performed service in support of U.S. operations in Vietnam from July 1971 to October 1971.  

Non-service connected pensions are payable to veterans of a period of war who are permanently and totally disabled and meet certain service and income requirements.  A veteran meets the requirements if such veteran served in the active military, naval, or air service for an aggregate of ninety days or served at any time during a period of war and was discharged or released from such service for a service-connected disability.  38 U.S.C.A. § 1521.  

The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101 (2).  The term "active military, naval, or air service" includes active duty, active duty for training, and inactive duty.  38 U.S.C.A. § 101 (24).  The term "active duty" means full time duty in the Armed Forces.  38 C.F.R. § 101 (21).  The term "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard including reserve components thereof.  38 U.S.C.A. § 101 (10).    

Statutes and regulation provide that certain individuals and groups are considered to have performed active military, naval, or air service.  38 U.S.C.A. § 106, 107; 38 C.F.R. § 3.7.  The Cambodian Army and its soldiers are not among those individuals or groups listed in the statutes and regulation.  

In a November 2008 claim for pension, the appellant reported that he served as sergeant in the Cambodian 209th battalion including service in the Republic of Vietnam from July 1971 to October 1971.  In a March 2009 notice of disagreement, the appellant reported that he helped defend the United States in the Vietnam War and provided a list of other service locations in Cambodia from October 1971 to September 1975.   In November 2009, the appellant provided a photograph of a document with his picture, name, and serial number and annotated with the title "Veteran Cambodia" and subtitled "Retired Army.  The document has no signature or verification markings from the Department of Defense or the government of Cambodia but contains logos of the U.S. Army and National Guard.  

For the purpose of establishing eligibility for pension benefits, VA may accept evidence of service submitted by the claimant without verification from the service department if the evidence is a document issued by the service department; is certified by certain other parties; contains the needed information as to length, time, and character of service; and in the opinion of VA adjudicators is genuine and the information contained in it is accurate.  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification from the service department.  38 C.F.R. § 3.203

The Board concludes that eligibility for a non-service connected pension is not warranted because the appellant did not perform active military, naval, or air service in the Armed Forces of the United States or was an individual or member of a group considered to have performed such service.  Therefore, the appellant is not a veteran for the purposes of a non-service connected pension.  The appellant does not contend that he was on active duty in the Armed Forces of the United States but rather that he was as a member of an allied armed force and provided assistance to U.S. forces in a combat theater.   That he did not perform active service in the United States Armed Forces is not in dispute and further VA assistance to obtain Department of Defense documents or verification is not warranted.  The Board need not reach a determination whether the evidence presented is sufficient to demonstrate that the appellant did serve in the Cambodian Army at the contended times and places or that he did perform services in support of U.S. military operations because this form of service is not recognized as active military, naval, or air service in the Armed Forces of the United States for VA pension purposes.   

This is a case where the law is dispositive.  Basic eligibility for a non-service-connected disability pension is precluded based on the nature of the appellant's foreign military service.  Therefore, the Board must deny the appeal.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  


ORDER

A non-service connected disability pension is denied.  


____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs