Citation Nr: 1304808 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-34 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Whether the appellant has met the basic eligibility requirements for Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The appellant has alleged active service from November 1973 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Baltimore, Maryland. FINDING OF FACT 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 appellant does not have status as a service member for purposes of this claim, and therefore the appellant does not meet the requirements of basic eligibility for VA benefits. 38 U.S.C.A. § 101 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims involving statutory interpretation. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA does not affect matters on appeal when the issue is limited to statutory interpretation). Consequently, the provisions of the VCAA, as well as VA's implementing regulations, will not be addressed in the Board's decision. In June 1988, the appellant submitted a claim of entitlement to nonservice-connected pension. He indicated on his application that he entered active duty in November 1973 in Valladolid, Spain and separated from active duty in November 1975 at Lawrence Kansas, with the rank of sergeant. He also indicated that he had been a prisoner of war of Spain from November 3, 1973 to approximately November 10, 1973. He also reportedly held captive by Canada for two days in Montreal during the 1976 Olympics. The appellant wrote that, while in Spain, he volunteered to work for the United States Army. He was given a substance in his food by Israeli and Soviet agents which caused brain damage. They continued to slip substances in his food or gave him injections on several occasions over the next approximately nine years. People reported by the appellant as having actual knowledge of his injuries were General Alexander Haig, President Richard Nixon and President Gerald Ford. The pension claim was denied in August 1999 based on excessive income of the appellant. In September 2006, the appellant submitted a claim of entitlement to VA compensation for toxic encephalopathy. He reported on his application that he entered active duty in November 1973 in Spain. He left active duty in November 1975, while stationed in Kansas. He reported that he served in the United States Army and did not know his rank. The appellant further indicated on his application that he was a prisoner of war of the Russians for one month in November 1973. He was reportedly held captive in Valladolid, Spain. He wrote that he was injured by agents of the Soviet Union by some sort of solvent. The appellant testified before the Board in November 2012 that, while in Spain for a semester abroad as a student in 1973, he had toxic encephalopathy and also joined the Army. The appellant did not know anyone who could verify that he was in the Army. Eligibility for VA benefits is governed by statutory and regulatory law which defines an individual's legal status as a "veteran" of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A "service-connected" disability is a disability that was incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a)-(b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department, (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). In the current case, the appellant has not submitted any evidence which satisfies the criteria set out above under 38 C.F.R. § 3.203(a). The appellant has not submitted any documents which were issued by a service department. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA shall request verification of service from a service department. 38 C.F.R. § 3.203. Moreover, a service department determination as to an individual's service shall be binding on the VA. See Duro v. Derwinski, 2 Vet. App. 530 (1992); see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). VA attempted to verify the appellant's claimed military service. A VA Form 21-3101, Request for Information, was prepared and forwarded to the National Personnel Records Center (NPRC). In January 2007, the service department determined that it could not verify any periods of service for the appellant based on the information provided by VA. This information consisted of the appellant's first and last name and middle initial, his Social Security number, his date of birth and the alleged dates of his military service. VA was informed that, if additional information could be obtained, this information should be submitted for another determination. No additional descriptive information had been provided by the appellant nor could the Board find another other evidence in the claims file which might lead to a productive search of the military records. Based on this, the Board finds further attempts to verify the appellant's service would not be fruitful and are not warranted. The appellant has argued that VA has already determined that he satisfies the definition of veteran as set out under 38 U.S.C.A. § 101(2) and 38 C.F.R. § 3.1(d). This allegation is based on an August 2006 letter VA sent to the appellant informing him of the loss of a VA laptop and the potential compromise of the appellant's personal information. The appellant also argues that after he received the letter, he contacted VA and provided his Social Security number. He was informed by the VA employee who answered the phone that VA records showed the appellant enlisted on November 1, 1973 and was given a general discharge on November 1, 1975. When the appellant asked the VA employee what the source of the information was, the reply was given that the source of the information was the Defense Department. While the appellant might be sincere in his belief that he was informed by VA personnel that his military service had been confirmed by records held by VA or the Defense Department, this belief is insufficient upon which to base a determination that the appellant satisfies the definition of veteran so as to qualify for VA compensation benefits. As noted above, a service department determination as to whether an individual had qualifying service is binding on VA. See Duro v. Derwinski, 2 Vet. App. 530 (1992); see also Dacoron, 4 Vet. App. at 120. The service department has determined that the appellant had no qualifying service and the appellant has not provided any additional information that would assist either the service department or the VA in verifying his purported service. As the service department's determination as to the service of the appellant is binding on VA, the Board concludes that the appellant is not considered a "veteran" for purposes of entitlement to VA benefits. Therefore, the appellant's claim for entitlement to VA benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes the appellant's representative requested a remand in order to obtain records from a suit the appellant filed against the Federal Government regarding the nature of his service. Significantly, neither the appellant nor his representative has indicated that there is evidence in this suit documenting the appellant's military service. There is no indication that the appellant was successful in this endeavor. The mere report that the appellant had filed suit against the Federal Government to determine his military service without any evidence indicating that there is confirmation from a service department of the appellant's claimed military service does not trigger the duty to assist the Veteran with this claim. The appellant has been informed on several occasions as to the requirement that he submit evidence of his military service. The Board feels confident that, if the appellant had evidence of this service which was utilized in the prior suit, this evidence would also have been submitted or at least alluded to by the appellant in the current case. His silence as to the details of his suit against the Federal Government lends weight to the Board's determination that a remand is not required to obtain evidence of this action. ORDER The appeal is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs