Citation Nr: 1309929	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-47 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to nonservice-connected disability pension. 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

The Veteran had active service in the United States Air Force from 
April 1977 to April 1981.  This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  
An appeal to the Board consists of a timely filed notice of disagreement in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200 (2012).  In this case, the Veteran filed a notice of disagreement in September 2009, and the RO issued a SOC in November 2010; however a substantive appeal is not in the claims file.  Nonetheless, the Veteran's representative confirmed that a timely substantive appeal was submitted on December 2, 2010.  See November 2012 statement.  That substantive appeal has apparently been lost.  In light of the contention set forth, the Board has accepted jurisdiction over the issue and any requirement for a substantive appeal is therefore waived.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).

FINDING OF FACT

The Veteran did not serve in the active military, naval, or air service during a period of war.

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 (2012). 


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 Veteran seeks nonservice-connected disability pension.  He essentially contends that he served during a period of war.  

Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability that is not the result of willful misconduct, provided that they have the requisite service.  38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b) (2012).   A Veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) 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).

VA's determination of whether a claimant's service meets the threshold statutory requirements usually is dependent upon service department records verifying the character of a claimant's service.  See 38 C.F.R. § 3.203 (2012); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

In his September 2009 notice of disagreement, the Veteran noted that he served in the post-Vietnam era and during the Iran hostage crisis, and that those periods should be considered periods of war.  

Whether a Veteran's service includes wartime service is a matter of law.  The term "period of war" is currently defined by statute to encompass.  The Vietnam era and the Persian Gulf War are considered periods of war.  38 U.S.C.A. § 101(11).  The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period.  38 U.S.C.A. § 101(29)(A); 38 C.F.R. § 3.2(f).  In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C.A. § 101(29)(B); 38 C.F.R. § 3.2(f). The Persian Gulf War is defined as the period beginning August 2, 1990, and continuing to the present.  38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i)(2012). 

Accordingly, the Veteran's service from April 1977 to April 1981, was not during a period of war as defined by applicable regulation.  
In sum, the Veteran's service does not meet the threshold criteria for basic eligibility for nonservice-connected pension benefits.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3.  He did not serve in active military, naval, or air service for 90 days or more during a period of war.  The record also does not reflect that that the Veteran served during a period of war and was discharged or released from service for a service-connected disability, nor does the record indicate that he should have received such a discharge.  He is not shown to have served on active duty for a period of 90 consecutive days or more which began or ended during a period of war.  Finally, the Veteran did not serve on active duty during more than one period of war for an aggregate 90 days or more.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3

Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because the Veteran's service does not meet the criteria described, he does not meet the basic eligibility requirements for nonservice-connected pension, and the claim must be denied based upon a lack of entitlement under the law.

ORDER

Entitlement to nonservice-connected disability pension is denied.



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



Department of Veterans Affairs