Citation Nr: 1123479	
Decision Date: 06/21/11    Archive Date: 06/28/11

DOCKET NO.  09-32 232A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to nonservice-connected pension benefits. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

H. A. Hoeft, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1977 to April 1981.  

This case comes before the Board of Veterans' Appeals (Board) from a December 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO denied the Veteran's claim for pension benefits because she did not meet the basic eligibility requirements, specifically, the wartime service requirement.  

On her substantive appeal, the Veteran requested a personal hearing before a Veterans Law Judge.  A Central Office hearing before a Veterans Law Judge (VLJ) was scheduled in February 2011.  However, the Veteran failed to report for her scheduled hearing.  Not having received a request for postponement and pursuant to 38 C.F.R. § 20.704(d), the Board will proceed with its adjudication of the appeal "as though the request for a hearing had been withdrawn." 38 C.F.R. § 20.704(d); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996) (discussing provisions of § 20.704(d)).


FINDINGS OF FACT

The Veteran did not serve during a period of war as defined by VA laws and regulations.


CONCLUSION OF LAW

The claim for pension benefits has no legal merit. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).  This is such a case.  As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for pension benefits.  The VCAA is therefore inapplicable and need not be considered in this case.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).

Under VA laws and regulations, the payment of nonservice-connected pension benefits is provided to Veterans who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the Veteran has the requisite active wartime service.  38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b).  A Veteran meets the service requirements of that section if the Veteran served in active military, naval or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3).  VA specifically defines periods of war include from June 27, 1950, through January 31, 1955, for the Korean conflict, from February 28, 1961 through May 7, 1975, for the Vietnam Era (in the case of Veterans who served in Vietnam; otherwise from August 5, 1964 to the same end date), and August 2, 1990 through a date to be prescribed by Presidential proclamation or law for the Persian Gulf War.  38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2. 

The evidence of record reflects that the Veteran's service does not fall within any period of war as defined by the applicable statutes and regulations.  Her DD Form 214 reflects that her active service was from April 1977 to April 1981, between the Vietnam Era and Persian Gulf War.  The claims folder does not otherwise include any documentation from any official source showing that the Veteran had active military duty service during a period of war as defined by law or regulation.  38 C.F.R. § 3.2.

In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Id. at 430.  As the above evidence reflects that the Veteran does not have active service during a period of war, and this is a threshold requirement for establishing entitlement to pension benefits, there is no legal merit to his claim for pension benefits, and the claim must be denied as a matter of law.




ORDER


Basic eligibility for VA nonservice-connected pension benefits has not been established and entitlement to nonservice-connected pension is denied.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs