Citation Nr: 1306206	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  11-21 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center 
in Milwaukee, Wisconsin



THE ISSUE

Entitlement to non-service-connected pension benefits.  



ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel





INTRODUCTION

The Veteran served on active duty from June 1956 to October 1957.  (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).)

This matter comes to the Board of Veterans' Appeals (Board) on appeal following a November 2010 decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin.  


FINDING OF FACT

The Veteran has not had wartime service.


CONCLUSION OF LAW

The criteria for basic eligibility for non-service-connected pension benefits have not been satisfied.  38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks non-service-connected pension benefits.  He contends, in essence, that he has difficulty obtaining and maintaining gainful employment as a result of disability.  

In order to establish basic eligibility for non-service-connected pension benefits, it must be shown that the applicant Veteran served during a period of war.  See 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3).  

With exceptions not here applicable, VA presently recognizes the following as periods of war:  January 1, 1817 through December 31, 1898, inclusive (Indian wars); April 21, 1898 through July 4, 1902, inclusive (Spanish-American War); May 9, 1916 through April 5, 1917 (Mexican border period); April 6, 1917 through November 11, 1918, inclusive (World War I); December 7, 1941 through December 31, 1946, inclusive (World War II); June 27, 1950 through January 31, 1955, inclusive (Korean conflict); August 5, 1964 through May 7, 1975, inclusive (Vietnam War); and August 2, 1990 through a date to be prescribed by Presidential proclamation or law (Persian Gulf War).  See 38 C.F.R. § 3.2.

In the present case, the Board finds that the Veteran's claim for non-service-connected pension benefits must be denied as a matter of law.  The evidence clearly shows that the Veteran served on active duty from June 1956 to October 1957.  As outlined above, service during that time frame is not considered service during a period of war.  Notwithstanding the Veteran's contentions concerning his financial need and an inability to work, because the Veteran has had no wartime service, he does not satisfy the basic eligibility requirements for non-service-connected pension.  As a result, his appeal must be denied.

On November 9, 2000, the President signed into the law 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. 2012)).  The VA General Counsel has held that the notice and duty-to-assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award.  VAOPGCPREC 5-2004 (June 23, 2004); VAOPGCPREC 2-2004 (March 9, 2004).  



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ORDER

The appeal is denied.  



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs