Citation Nr: 1310440 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 12-09 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Basic eligibility for nonservice-connected pension benefits. ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on inactive duty from July 1953 to July 1955 in the United States Navy Reserves. He also served in the U.S. Army from March 1957 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 administrating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the Veteran's claim of entitlement to nonservice-connected disability pension benefits. The Board notes that on his March 2012 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before the Board via video conference. However, the Veteran failed to appear at his scheduled hearing in February 2013. Accordingly, the Board is proceeding as though he withdrew this hearing request because the Veteran neither filed for a postponement of his hearing nor provided documentation showing good cause for his failure to appear. 38 C.F.R. § 20.704(d) (2012). Please note 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). FINDINGS OF FACT 1. The Veteran's service in the Navy Reserves from July 1953 to July 1955 is not qualifying service for pension purposes. 2. The Veteran served on active duty from March 1957 to July 1961. 3. The Veteran did not serve in the Republic of Vietnam during service. 4. The Veteran had no active duty service during a period of war. CONCLUSION OF LAW Basic eligibility for entitlement to pension benefits is precluded by law. 38 U.S.C.A. §§ 101(29), 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). With respect the Veteran's claim of entitlement to nonservice-connected pension benefits, there is no factual dispute as to his dates of service, only whether his dates of service were during a period of war, which is the determining factor in this appeal. In support of this claim, the Veteran argues that his initial service in the Navy Reserves from July 1953 to July 1955 was active duty during the Korean conflict. He also states that his service is the United States Army from March 1957 to July 1961 is during the Vietnam era. As such, he is entitled to nonservice-connected pension benefits. Generally, in order to establish basic eligibility for nonservice-connected pension benefits, it must be shown that the Veteran served on active military duty during a period of war for 90 days or more. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). VA's laws and regulations recognize June 27, 1950 through January 31, 1955 (the Korean Conflict) and August 5, 1964 through May 7, 1975 (the Vietnam Era for Veteran's who did not service in the Republic of Vietnam) as periods of war. 38 U.S.C.A. § 101 (9), (11), (29) (West 2002); 38 C.F.R. § 3.2 (2012). The Veteran had verified active military service from March 27, 1957 to July 27, 1961, and he did not serve in Vietnam. As such, the Board finds that the Veteran served on active duty for more than 90 days; however, the Veteran's active duty service did not occur during period officially recognized as a period of war. The Veteran also had verified service in the Navy Reserves from July 1953 to July 1955. This service was inactive duty for training. As this period of the Veteran's military service was not active duty, it cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a nonservice-connected pension. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). In any event, the period was also not during a period of war as defined by law. 38 U.S.C.A. § 101 (9), (11) (29) (West 2002); 38 C.F.R. § 3.2 (2012). In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United States Court of Veterans Appeals held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. at 430. As the Veteran does not have the requisite military service during a period of war, the provisions of 38 U.S.C.A. §§ 101(29) and 1521 as well as 38 C.F.R. §§ 3.2 and 3.3 preclude eligibility to nonservice-connected pension benefits. As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. Sabonis. ORDER Basic eligibility for entitlement to VA disability pension benefits not having been established, the appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs