Citation Nr: 1127378	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  08-07 343	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina


THE ISSUE

Entitlement to a permanent and total rating for nonservice-connected (NSC) pension purposes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Andrew Mack



INTRODUCTION

The Veteran served on active duty from January 1978 to September 1983.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 decision in which the RO denied a permanent and total rating for NSC pension purposes.  In September 2007, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in February 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2008.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished.  

2.  The Veteran had active duty service from January 1978 to September 1983, with no additional periods of active duty.


CONCLUSION OF LAW

The claim for a permanent and total rating for NSC pension purposes is without legal merit.  38 U.S.C.A. §§ 101, 1521(a) (West 2002); 38 C.F.R. § 3.3(a)(3) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

In the present appeal, the September 2007 SOC included citation to and discussion of the legal authority governing awards of NSC pension benefits.  The September 2007 SOC explained the reasons for the denial of the Veteran's request for NSC pension benefits.  Moreover, the Veteran has been afforded the opportunity to present evidence and argument with respect to the claim on appeal.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran.  As will be explained below, the claim lacks legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).

II.  Analysis

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).  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 specific dates encompassing the "periods of war" are set by statute, in particular, 38 U.S.C.A. § 101. The qualifying periods of war are identified as the Mexican border period (May 9, 1916, to April 5, 1917), World War I (April 6, 1917 to November 11, 1918), World War II (December 7, 1941, to December 31, 1946), the Korean conflict (June 27, 1950, to January 31, 1955), the Vietnam era (August 5, 1964, to May 7, 1975), and the Persian Gulf War (August 2, 1990, to a date thereafter to be prescribed by Presidential proclamation or by law).  38 U.S.C.A. § 101(11); 38 C.F.R. § 3.3(a)(3).  

The basic facts in this case are not in dispute.  The Veteran's service records reflect, and the Veteran concedes, that she had active service from January 1978 to September 1983, with no additional periods of active duty.  Thus, the Veteran did not serve during a period of war for NSC pension benefits purposes.

The Veteran argues that, during her period of service, the United States was involved in the invasion of Panama and other engagements.  However, as noted above, the specific dates encompassing the "periods of war" are set by statute, and the Veteran's service does not qualify as service during a period of war.  Thus, she does not meet the basic service requirements for eligibility for NSC pension benefits under 38 U.S.C.A. § 1521(a) and 38 C.F.R. § 3.3(a)(3).

The pertinent legal authority governing service requirements for NSC pension benefits eligibility is clear and specific, and the Board is bound by such authority.  As, on these facts, the Veteran does not meet the necessary service requirements, the claim for a permanent and total rating for NSC pension purposes must be terminated or denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

A permanent and total rating for NSC pension purposes is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs