Citation Nr: 1307253	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-44 764	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Basic eligibility for non-service connected pension benefits.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Sherrard, Counsel


INTRODUCTION

The Veteran, who is the Appellant in this case, had active service from January 1961 to January 1963.  

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) Regional Office (RO).

The Veteran provided testimony at an October 2011 Travel Board hearing before the undersigned Veterans Law Judge at the RO in Wichita, Kansas.  A transcript of the hearing is associated with the claims folder.

The Board notes that the December 2004 decision, which denied non-service connected pension benefits, did not become final in light of the receipt of relevant service department records subsequent to the December 2004 rating decision.  See 38 C.F.R. § 3.156(c) (2012).  Thus, new and material evidence is not required to reopen the claim of entitlement to non-service connected pension benefits, as the December 2004 decision did not become final and is, in fact, the subject of the current appeal along with the June 2010 decision.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.


FINDING OF FACT

The Veteran did not serve 90 days or more during a period of war and was not discharged or released from service for a service-connected disability.





CONCLUSION OF LAW

The Veteran's military service does not meet threshold service eligibility requirements for VA pension benefits.  38 U.S.C.A. §§ 101(2), 1521(a) and (j), 5107(a) (West 2002); 38 C.F.R. §§ 3.2 , 3.3 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The law provides that VA shall pay to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section) and who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, pension at the rate prescribed by this section.  38 U.S.C.A. § 1521(a). 

A veteran meets the service requirements of this section if such veteran served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) (important for this case) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety 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). 

The term "period of war" is defined by statute.  In the case of a veteran who served in the Republic of Vietnam, the Vietnam War includes the period from February 28, 1961 to May 7, 1975.  For all other veterans, the Vietnam era began August 5, 1964, and ended May 7, 1975.  38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2(f)(i). 

In this case, the Veteran served for more than 90 days, but did not serve during the Vietnam era.  His DD Form 214 clearly shows that his sole period of active duty was service from January 27, 1961 to January 13, 1963.  However, he did not have any service in Vietnam.  

His DD Form 214 does not indicate in-country service in Vietnam or the receipt of any medals that would show engagement in direct combat.  Moreover, his service personnel records show that he served on board the USS Ranger, which was stationed in Southeast Asia, but do not show any in-country service in Vietnam.  Further, he testified at the October 2011 Board hearing that he did not set foot in Vietnam during his service in the Navy.  Thus, since he did not have any in-country service in Vietnam, he did not meet the requirement of having active service between August 5, 1964 and May 7, 1975, and thus, is not eligible for non-service-connected pension benefits.  The Board further notes that the Veteran was not released or discharged from service for a service-connected disability.  

The Board acknowledges the Veteran's contention that he spent six months in Vietnam in 1968, working as a civilian under contract with the Department of Defense (DOD).  This fact is not in dispute.   

However, civilian work is not considered active service under VA regulations, and, therefore, does not qualify an individual for non-service-connected pension benefits.  

The Board notes that active service will be the period certified by the service department.  38 C.F.R. § 3.41(a) and (d).  The United States Court of Appeals for Veterans Claims (Court) has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the United States Armed Forces."  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Whether a claimant is a veteran and thus has basic eligibility to VA benefits is a question dependent on service department certification.  38 C.F.R. § 3.41 (a), (d); Duro, 2 Vet. App. at 532. 

Only service department records can establish if and when a claimant has qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  The service department's findings in this case are conclusive and binding upon VA, and the Board does not have the authority to alter them.  Duro; Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Thus, the Board must rely on official personnel records in determining the Veteran's period of active service, not the Veteran's assertions that his civilian service with the DOD should count as active service. 

Accordingly, the Board finds that the criteria for qualifying service set forth at 38 U.S.C.A. § 1521(j) and 38 C.F.R. § 3.6 are not met.  Lacking qualifying service, the basic eligibility requirements for VA pension benefits are not met, and the appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). 

The Board has considered VA's duties to notify and assist claimants in substantiating a claim for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012)).  However, as discussed above, the law and not the facts are dispositive of this appeal; therefore, the duties to notify and assist imposed by the VCAA are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 

ORDER

The appeal is denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs