Citation Nr: 1139655	
Decision Date: 10/26/11    Archive Date: 11/07/11

DOCKET NO.  09-10 397	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to basic eligibility for pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel


INTRODUCTION

The Veteran served on active duty from October 1957 to August 1960 and from November 1961 to August 1962.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The issue of entitlement to service connection for bilateral hearing loss was claimed in the Veteran's original claim in January 2008, but the RO has not yet addressed this issue.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 


FINDING OF FACT

The Veteran did not have active military service during a period of war.


CONCLUSION OF LAW

The Veteran's military service does not meet threshold service eligibility requirements for VA pension benefits.  38 U.S.C.A. §§ 101(2), 1521(a) and (j), 5107(a) (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)), imposes obligations on VA in terms of its duties to notify and assist claimants.  For claims such as adjudicated below, however, where the decision rests on the interpretation and application of the relevant law, the VCAA does not apply.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from non-service-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 Veteran testified in July 2011 that he served on active duty during the Berlin Crisis.  He also stated that he did not serve in Vietnam.

In this case the Veteran had two periods of service, from October 1957 to August 1960 and from November 1961 to August 1962.  None of the Veteran's service was during a period of war as defined by VA.  See 38 C.F.R. § 3.2.  Service during the Berlin Crisis is not recognized by VA as being during a period of war.  

The Board notes that although veterans who actually served in Vietnam between February 28, 1961, and August 5, 1964, are considered to have served during a period of war, the Veteran did not serve in Vietnam.  For those Veterans who did not actually serve in Vietnam, such as the Veteran, service during the Vietnam War is only recognized for those who served between August 5, 1964, and May 7, 1975.  The Veteran did not have any service after August 1962.

As noted above, eligibility for VA pension benefits requires an initial showing that the claimant is a veteran who served on active duty for at least 90 days during a period of war.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.2.  Here, the evidence fails to show that any of the Veteran's service was during a period of war.  As a matter of law, the Veteran did not serve during a period of war, and his appeal for pension benefits must be denied since he does not meet the threshold statutory requirement for eligibility for that benefit.



ORDER

Entitlement to basic eligibility for pension benefits is denied.



____________________________________________
James L. March 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs