Citation Nr: 1124154 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-32 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Palo Alto, California THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) healthcare benefits. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to November 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Medical Center (MC) in Palo Alto, California, which determined that the Veteran was ineligible for VA healthcare benefits. The Board notes that in the Veteran's VA Form 9, Appeal to the Board of Veterans' Appeals, received in received in September 2009, the Veteran indicated that he wanted to have a hearing before the Board at the RO. The Veteran was scheduled for a travel board hearing on May 12, 2010. However, the record reflects that he failed to report for the scheduled hearing. The Board finds that there is no Board hearing request pending at this time. 38 C.F.R. § 20.702(d) (2010). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's only period of service was from June 1988 to November 1989. CONCLUSION OF LAW The basic eligibility requirements for enrollment in the VA medical healthcare system have not been met. 38 U.S.C.A. § 101 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.12a (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and entitlement to basic eligibility for VA healthcare benefits is precluded based upon the Veteran's lack of the minimum period of active duty requirement; therefore, legal entitlement to VA healthcare benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Decision A "veteran" is 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 duty" includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA), and "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10), (21). In this case, there is another requirement for the Veteran to be eligible for healthcare benefits. A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981 and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (early out), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term minimum period of active duty means, for the purposes of this section, the shorter of the following periods: (1) twenty-four months of continuous active duty, non-duty periods that are excludable in determining VA benefit entitlement (e.g., see 38 C.F.R. § 3.15) are not considered as a break in service for continuity purposes but are to subtracted from total time served; (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a (a). The minimum period of active duty requirement does not apply: (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the 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; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a (d). The threshold issue to address in this case is whether the Veteran has the minimum period of active duty in order to become eligible for VA healthcare benefits. The Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, shows that he served on active duty for a period of 1 year, 4 months, and 23 days from June 1988 to November 1989. Furthermore, in his own notice of disagreement (NOD), dated July 2009, the Veteran admitted to serving in the United States Army from June 1988 to November 1989, which is clearly less than 24 months of continuous active duty. Thus, his service does not satisfy the requisite minimum of twenty-four consecutive months of active duty required by 38 C.F.R. § 3.12a. Moreover, it is worth mentioning that his DD Form 214 shows that he had no prior active or inactive service, thus precluding the possibility that he met the requirement through another period of active duty service. Rather his DD Form 214 reflects that he received a General (Under Honorable Conditions) discharge for his service ending in November 1989. The separation code is JKQ (misconduct, commission of a serious offense). The narrative reason for his separation that appears on his DD Form 241 is "MISCONDUCT - COMMISION OF A SERIOUS OFFENSE." As noted in his July 2009 NOD, the Veteran admitted that he was court marshaled and found not guilty of all drug charges that were brought before him during his military service. This assertion holds true since his DD Form 214 denotes that he was discharged pursuant to separation authority, Army Regulation 635-200, Paragraph 14-12c, which applies to the commission of a serious offense. Also, the reentry codes of RE-3, 3B, and 3C that are listed on the DD Form 214 indicate that the Veteran is not qualified for continued Army service, has lost time during the last period of service, and has completed over four months of service but does not meet the pay grade requirements of Chapter 2, all absent a waiver by the military. Therefore, from all objective indications, the Veteran did not complete his full term of service. In addition, although 38 C.F.R. § 3.12a(d) sets forth several exceptions to the requirement for a minimum period of active duty, the Veteran fails to establish that any of these apply. Here, the Veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge). He was not discharged for a disability adjudged service-connected without presumptive provisions of law. At the time of discharge, he did not have a service-connected disability. At present, he still does not have a compensable service-connected disability. In fact, he is not currently service connected for any disabilities. He does not currently have a claim pending for service connection. Lastly, he is not covered by any other exception listed in 38 C.F.R. § 3.12a(d). The Board is sympathetic to the Veteran's arguments but, unfortunately, is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Accordingly, since the Veteran does not satisfy the threshold minimum active duty service requirements, his claim for eligibility for VA healthcare benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426. ORDER Entitlement to basic eligibility for Department of Veterans Affairs (VA) healthcare benefits is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs