Citation Nr: 1304209	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  10-41 149	)	DATE
	)
	)

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


THE ISSUE

Entitlement to nonservice-connected pension benefits. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Barner, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1976 to February 1979. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota.  The claim was subsequently transferred to the Regional Office (RO) in Waco, Texas.

A Travel Board hearing was scheduled in August 2012, but the Veteran failed to report.  As such, his hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(d) (2012). 


FINDING OF FACT

The Veteran did not serve on active duty during a period of war.


CONCLUSION OF LAW

The basic requirements for entitlement to nonservice-connected pension benefits have not been met.  38 U.S.C.A. §§ 1521, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.2, 3.3, 3.159 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)
 
The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  As explained below, there is no legal basis upon which pension benefits may be awarded and the appellant's claim must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Although the Board is aware that the Decision Review Officer process was chosen by the Veteran without such route being followed, here, where the issue turns on a matter of law, remand is not necessary.  The provisions of the VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). 

Analysis

The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service, who is permanently and totally disabled, and who meets certain income and net worth requirements.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.3. 

A veteran meets the service requirements to receive nonservice-connected pension benefits if such veteran served in the active military, naval or air service:  (a) for 90 days or more during a period of war; (b) during a period of war and was discharged or released from such service for a service-connected disability; (c) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (d) 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); 38 C.F.R. § 3.3(a)(3). 

The qualifying periods of war are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, and the Persian Gulf War.  38 C.F.R. § 3.3(a)(3).  The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of an appellant who served in the Republic of Vietnam during that period; and in all other cases, the period beginning on August 5, 1964, and ending on May 7, 1975.  38 C.F.R. § 3.2(f).  The Persian Gulf War is the period beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law.  38 C.F.R. § 3.2(i). 

Evidence of record shows that the Veteran served on active duty from February 1976 to February 1979.  The Veteran did not serve during a period of war as defined by law or regulation.  As such, he is ineligible for pension benefits.  As the law is dispositive of the Appellant's claim for nonservice-connected pension benefits, the claim must be denied for lack of legal merit.  Sabonis. 


ORDER

Entitlement to nonservice-connected pension is denied.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs