Citation Nr: 1128029	
Decision Date: 07/27/11    Archive Date: 08/02/11

DOCKET NO.  10-21 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to nonservice-connected pension benefits, to include special monthly pension benefits.

ATTORNEY FOR THE BOARD

K. Marenna, Associate Counsel


INTRODUCTION

The appellant had verified service in the United States Coast Guard as a Merchant Marine from April 1946 to December 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which determined that the appellant's Merchant Marine service did not establish eligibility for pension benefits.

The appellant requested a Travel Board hearing before a Veterans Law Judge.  However, in a March 2011 statement, the appellant withdrew the hearing request.  Therefore, the Board may proceed to adjudicate this appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The appellant's DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects service as a Merchant Marine from April 11, 1946, to December 23, 1946.

2.  The appellant did not serve as a crew member aboard a merchant vessel during the period of armed conflict, December 7, 1941, to August 15, 1945.

3.  The appellant is not shown to have had active military, naval or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service.


CONCLUSION OF LAW

The criteria for nonservice-connected pension benefits, to include special monthly pension benefits, have not been met.  38 U.S.C.A. § 101(10), (24), 1502, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.3, 3.6, 3.7, 3.203, 3.351, 3.352 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify and assist the claimant in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2010).  The appellant was provided with the requisite VCAA notice prior to the initial adjudication of his claim in November 2005.  However, compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001).  In reviewing the issue of whether the appellant may be recognized as a veteran for VA pension purposes, the Board observes that the law, and not the evidence, is dispositive of the appellant's claim.  See Valioa v. Principi, 17 Vet.App. 299 (2003); Sabonis v. Brown, 6 Vet App 426, 430 (1994).  Therefore, any deficiencies in VCAA notice are moot.

II. Legal Criteria

Basic eligibility for pension benefits exists when a claimant has active military service of 90 days or more during a period of war; has active military service during a period of war and was discharged or released from such service for a service-connected disability; for a period of 90 consecutive days or more and such period began or ended during a period of war; or for an aggregate of 90 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) (West 2002); 38 C.F.R. § 3.3(a)(3) (2010).

A veteran receiving nonservice-connected pension may receive pension at a higher, special monthly rate if he needs regular aid and attendance of another individual to conduct routine activities necessary for daily life, or if he is permanently housebound or has a permanent and total disability plus a disability rated as 60 percent disabling.  38 C.F.R. § 3.351(b) and (d).

The term 'veteran' means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. See 38 C.F.R. § 3.1(d) (2010).  The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty.  See 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2010).

Service in the active military, naval, or air service includes service in the United States Armed Forces.  See 38 U.S.C.A. § 101(10) (in pertinent part defining 'Armed Forces' as 'United States Army, Navy, Marine Corps, Air Force, and Coast Guard').  Merchant Marines are not included in the statutory definition of Armed Forces.

With regard to service as a Merchant Marine, the Board notes that the Secretary of the Air Force made a determination on January 19, 1988, that the service of American Merchant Marines in oceangoing service during the period of armed conflict, from December 7, 1941, to August 15, 1945, shall be considered active duty for the purposes of all laws administered by VA.  See 53 Fed. Reg. 2,775-02 (Feb. 1, 1988); see also 38 C.F.R. § 3.7(x)(15) (2010) (certifying as 'active military service' the service of American Merchant Marines in Oceangoing Service during the period of Armed Conflict, December 7, 1941, to August 15, 1945).

To be eligible for VA benefits under this determination, each claimant is required to demonstrate by the following eligibility criteria that he or she:

1.  Was employed by the War Shipping Administration or Office of Defense Transportation or their agents as a merchant seaman documented by the U.S. Coast Guard or Department of Commerce (Merchant Mariner's Document/Certificate of Service), or as a civil servant employed by the U.S. Army Transport Service or the Naval Transportation Service; and,

2.  Served satisfactorily as a crew member during the period of armed conflict, December 7, 1941, to August 15, 1945, aboard, (a) merchant vessels in oceangoing, i.e., foreign, intercoastal, or coastwise service and further to include 'near foreign'' voyages between the United States and Canada, Mexico, or West Indies via ocean routes, or; (b) public vessels in oceangoing service or foreign waters.

See 53 Fed. Reg. 2,775-02 (Feb. 1, 1988); see also Frasure v. Principi, 18 Vet. App. 379, 386 (2004).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F.3d at 749.

The Board notes that VA may accept evidence of service submitted by a claimant, such as a DD Form 214, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains needed information as to length, time and character of service; and, (3) in the opinion of VA, the document is genuine and the information contained in it is accurate.  See 38 C.F.R. § 3.203(a) (2010).  The evidence of record includes a DD Form 214 and Honorable Discharge Certificate.  The Board finds the documents to be genuine and reflective of the length, time and character of the appellant's service.

III. Analysis

The appellant contends that he is entitled to nonservice-connected pension benefits to include special monthly pension benefits.  The appellant's DD Form 214 reflects service in the USCG-Merchant Marines, with a commencement date of April 11, 1946, and a termination date of December 23, 1946.  The DD Form 214 notes that it was issued under Public Law 104-368 (46 U.S.C.A. § 112), and that this document, "administratively establishes active duty service solely for benefits under Chapter 23 (relating to burial benefits) and Chapter 24 (relating to internment benefits) of Title 38 United States Code."  The Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368 provides for certain benefits for those who were members of the United States Merchant Marine.  No rank, pay grade, command or specialty is noted on the appellant's DD Form 214.  A continuation of the DD form 214, signed by a Legal Instruments Examiner, notes the dates during which the appellant served on specific vessels, between June 19, 1946, and December 23, 1946.  The Honorable Discharge certificate from the U.S. Coast Guard shows a discharge date of December 23, 1946, and no entry date.

In this case, the primary question on appeal is whether the appellant is a member of a group of Merchant Marines that has been recognized in a legislative or regulatory provision as being eligible for veterans' benefits.  See 53 Fed. Reg. 2,775-02 (Feb. 1, 1988); 38 C.F.R. § 3.7(x)(15) (2010).  Although the Secretary of the Air Force, pursuant to authority delegated by the Secretary of Defense, has certified a group of members of the Merchant Marine who demonstrated active duty service between December 7, 1941, and August 15, 1945, the evidence does not reflect that the appellant's service qualifies.  The appellant's DD Form 214 issued to him by the United States Coast Guard reflects service from April 11, 1946, to December 23, 1946.  Additionally, it notes no prior active or inactive duty.  The DD Form 214 does not reflect dates associated with the certified group, that is, dates that fall within the eligibility period of December 7, 1941, to August 15, 1945.

The Board has also considered the Honorable Discharge certificate submitted by the appellant.  While the certificate notes that it was issued for service in the American Merchant Marine between December 7, 1941 and December 31, 1946, the Board interprets this to mean recognition for any period of service in the Merchant Marine between December 7, 1941 and December 31, 1946, as compared to service encompassing the entire time period.  

Therefore, having reviewed the complete record, the Board finds that the evidence does not support that the appellant served in the Merchant Marine between December 7, 1941 and August 15, 1945.  Congress has clearly defined what is required for eligibility for VA benefits, and the Board has no authority to extend or expand that definition.  Here, there is no provision of law which accepts the status of a Merchant Marine who served for a period other than December 7, 1941, to August 15, 1945, as valid active military service for VA disability pension purposes.  Indeed, the appellant has not contended that the dates of service noted in his DD Form 214 are incorrect or that he had any other service in the active military, naval, or air service.

In cases such as this, where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law.  See Sabonis, 6 Vet App 426, 430.  In light of the fact that the appellant has not been found to have had qualifying military service, the Board finds that he does not meet the basic eligibility requirements for nonservice-connected pension benefits, to include special monthly pension benefits.  Accordingly, his appeal must be denied.


ORDER

Entitlement to nonservice-connected pension benefits, to include special monthly pension benefits, is denied.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs