Citation Nr: 1303095	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  10-37 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to nonservice-connected disability pension.  


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel







INTRODUCTION

The Veteran had active service in the United States Navy from September 1973 to October 1973.  

This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In a June 2010 decision, the Board denied entitlement to service connection for an acquired psychiatric disability.  The Veteran's application to reopen the claim was denied in December 2010.  While a timely notice of disagreement was filed and a statement of the case issued, the Veteran did not complete a substantive appeal to the Board (i.e. he failed to perfect an appeal) and the matter is not for appellate review.  38 U.S.C.A. § 7105(a); see Godfrey v. Brown, 7 Vet. App. 398 (1995)((pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA)).

The Veteran was scheduled for a Travel Board hearing in January 2012 but he failed to report at his scheduled time.  As no good cause was shown for his absence, his request for a hearing is deemed withdrawn.  


FINDING OF FACT

The Veteran had one period of service in a period of war for less than 90 days; he is not in receipt of service-connected compensation benefits for any disability.  





CONCLUSION OF LAW

The criteria for legal eligibility to nonservice-connected pension benefits have not been met.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.3.  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA) and implementing regulation ((38 U.S.C.A.§ 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012)) impose obligations on VA in terms of its duty to notify and assist claimants.  Because the law, and not the evidence, is dispositive in this case, the VCAA is not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  The service department has certified the Veteran's service to be less than 90 days of wartime service, and there is no service-connected disability present which might allow for consideration of a discharge as due to such a disability prior to the completion of 90 days of service.  Thus, there is no legal basis for the Veteran's claim, and VCAA notice is not required.  

The Veteran seeks nonservice-connected disability pension.  Essentially, he argues that he has met the basic requirements for eligibility to the benefit.  

Nonservice-connected pension benefits are generally available for qualifying Veterans of a period of war.  See 38 U.S.C.A. § 1521(a) (West 2002).  While the qualification for such a benefit depends also on age, nonservice-connected disability status, and income, without first meeting the threshold service requirements, there can be no eligibility to nonservice-connected pension.  Those service requirements are as follows: if the Veteran served for 90 days or more during a period of war; if the Veteran served during a period of war and was discharged from service due to a service-connected disability; if the Veteran served for a period of 90 consecutive days which began or ended during a period of war; or if the Veteran served for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war.  See 38 U.S.C.A. § 1521(j) (West 2002).

The Veteran does not have a service-connected disability, and thus was not discharged from service for such a disability.  The Veteran's service was between September 25, 1973 and October 19, 1973.  This is the sole period of active service established by the service department.  Thus, while the Veteran served in the U.S.  Navy sailor during the Vietnam Era-a recognized period of war-he was not in active service for at least 90 days.  Accordingly, the Veteran does not have the requisite service to be eligible for nonservice-connected pension.  

The claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426  (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). 

  
ORDER

Entitlement to nonservice-connected disability pension is denied.  


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs