Citation Nr: 1302113 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-27 671A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Loan Center in Atlanta, Georgia THE ISSUE Entitlement to VA home loan guaranty benefits. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Appellant had service in the U.S. Army Reserve from January 1967 to December 1972, with active duty for training (ADT) from April 1967 to August 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2010 decision by the above Department of Veterans Affairs (VA) Home Loan Eligibility Center in Winston-Salem, North Carolina. Jurisdiction over the Appellant's claims file was subsequently transferred to the VA Regional Loan Center in Atlanta, Georgia. FINDINGS OF FACT 1. The Appellant served in the United States Army Reserve from January 3, 1967 to December 31, 1972, received an honorable discharge, and was not discharged because of a service-connected disability. 2. The Appellant did not receive any active or inactive duty points during his period of Reserve service from January 3, 1969 to December 31, 1972. 3. The Appellant is not shown to be a "veteran" under the laws pertaining to the award of VA home loan guaranty benefits. CONCLUSION OF LAW The legal criteria for VA home loan guaranty benefits are not met. 38 U.S.C.A. §§ 3701, 3702 (West 2002 & Supp. 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002). Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable. Id. (VCAA not applicable to a claim for non-service-connected pension when the claimant did not serve on active duty during a period of war, as required by law). The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Because the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to this Veteran's claim. Nonetheless, the Board notes that the June 2010 Statement of the Case (SOC) included the laws and regulations pertaining to service requirements for eligibility for home loan benefits. The Appellant submitted various statements subsequent to receiving the SOC, and has not identified any additional pertinent evidence which should have been obtained. The Board concludes that no further notification or development of evidence is required. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to VA Home Loan Guaranty Benefits A certificate of eligibility for loan guaranty benefits is granted only to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C.A. §§ 3701 and 3702. For purposes of these benefits, the term "veteran" is defined under 38 U.S.C.A. § 3701(b). In this case, the Appellant did not have active duty service and does not meet the basic eligibility requirements under 38 U.S.C.A. § 5303A(b)(1) (2012). As pertinent to this case, the term "veteran" also includes an individual who is not otherwise eligible for housing benefits and who has completed a total service of at least six years in the Selected Reserve, and, following the completion of such service, was discharged from service with an honorable discharge, was placed on the retired list, was transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or continues serving in the Selected Reserve, or who was discharged or released from the Selected Reserve before completing six years of service because of a service-connected disability. 38 U.S.C.A. § 3701(b)(5)(A). The term "Selected Reserve" means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces. 38 U.S.C.A. § 3701(b)(5)(B). The record reflects that, in June 2010, the Appellant's request for a Certificate of Eligibility for Loan Guaranty Benefits was denied because he did not have the minimum six years of service required for eligibility to receive such a Certificate. As noted above, the Appellant served in the U.S. Army Reserve from January 3, 1967 to December 31, 1972, just shy of six years. The Appellant's December 1972 discharge orders reflect that he received an honorable discharge upon expiration of the term of obligated service. Thus, the evidence does not show that the Appellant was discharged for a service-connected disability. Accordingly, the Appellant's service does not qualify him for "veteran" status and he does not meet the requirements for eligibility for VA home loan benefits under 38 U.S.C.A. § 3701(b)(5)(A). Thus, the Appellant is not eligible to receive a Certificate of Eligibility for Loan Guaranty Benefits. In this regard, the Board notes that the Appellant contends that he was only several days short of completing six years of service with the Army Reserve, thereby fulfilling the required six years of service. In order for a year of service to be credited toward the six-year service requirement, however, at least one Active Duty or Inactive Duty point is required during each year in order to be credited as service. Membership points may be earned by Reservists or Guardsmen for being on the rolls whether the member participates in drill or not. Years in which only Membership points are earned do not count towards meeting the six-year service requirement. In this case, a March 2010 Memorandum from the Department of the Army shows that the Appellant received Active or Inactive Duty points during each year from January 1967 to January 1969. From January 1969 to December 1972, only Membership points are shown, and there is no evidence that the Appellant drilled or trained during those years. As a matter of law, therefore, these latter years (from 1969 to December 1972) are not creditable towards the minimum service requirements for the Home Loan benefit. Thus, even if the Board overlooked the fact that the Appellant was several days short of completing six years of Reserve service, several of those years do not qualify as creditable years for home loan benefits purposes. The law, not the evidence, is dispositive of the outcome of this case. As a matter of law, the Appellant is not eligible for VA home loan guaranty benefits. Thus, the claim of entitlement to VA home loan guaranty benefits must be denied. Sabonis, 6 Vet. App. 426. ORDER Entitlement to VA home loan guaranty benefits is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs