Citation Nr: 1311192	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  06-29 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Basic eligibility for Department of Veterans Affairs home loan guaranty benefits.  


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active military service from January 1966 to January 1968.  The Veteran died on January [redacted], 1976.  The appellant seeks surviving spouse benefits.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

The appellant testified at a hearing before the undersigned Veterans Law Judge in Washington, DC in July 2008.  A transcript of the hearing is associated with the claims file.

This case was previously before the Board.  In a December 2008 decision, the Board denied the issue currently on appeal.  The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims.  In a January 2010 order, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion.  In April 2010, the Board remanded the claim for additional development.  In an October 2010 decision, the Board again denied the issue currently on appeal.  The appellant again appealed the Board's decision to the Court.  In an April 2012 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board for action consistent with the memorandum decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).


FINDING OF FACT

The evidence does not establish that a service-connected disability caused or contributed substantially and materially to the Veteran's death, or that the Veteran's death was otherwise related to his active service.  


CONCLUSION OF LAW

The appellant does not meet the basic eligibility criteria for VA home loan guaranty because the Veteran's death is not due to a service-connected disability.  38 U.S.C.A. § 3701 (West 2002); 38 C.F.R. § 3.315 (b) (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has considered whether the notice provisions set forth in 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012) are applicable to this claim.  The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).  Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim. 

In light of the denial of service connection for the cause of the Veteran's death, the Board further finds that the appellant has no entitlement to a certificate of eligibility for VA home loan guaranty benefits. 

Under applicable law, a Veteran is eligible for housing loan benefits if he meets specified service requirements.  38 U.S.C.A. § 3702(a) (West 2002).  38 C.F.R. § 3.315(b) (2012).  The term Veteran under 38 U.S.C.A. § 3702 also includes the surviving spouse of any Veteran who died from a service-connected disability.  38 U.S.C.A. § 3701(b)(2) (West 2002). 

To qualify for a certificate of eligibility for VA home loan guaranty benefits, the appellant, as the surviving spouse of the Veteran, must demonstrate that the Veteran died from a service-connected disability.  In a separate decision, the Board has determined that service connection for the cause of the Veteran's death is not warranted. 

Accordingly, there is no legal basis upon which to award a certificate of eligibility for VA home loan guaranty benefits under 38 U.S.C.A. § 3701.  In a case where the law and not the evidence is dispositive, the claim 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.  Sabonis v. Brown, 6 Vet. App. 426 (1994).








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ORDER

Basic eligibility for VA home loan guaranty benefits is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs