Citation Nr: 1311208 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-11 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Basic eligibility for non-service-connected VA pension. WITNESSES AT HEARING ON APPEAL Appellant and niece ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The appellant claims veteran status. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of December 2008. In June 2012, the appellant appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). FINDING OF FACT The appellant did not perform active military service in the Armed Forces of the United States, or other service considered as active military service. CONCLUSION OF LAW The appellant is not a veteran for the purposes of eligibility for a non-service connected pension. 38 U.S.C.A. §§ 101 , 106, 107, 1521 (West 2002); 38 C.F.R. §§ 3.7, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA applies to the issue of veteran status, although the notice must be tailored to the specific requirements. See Palor v. Nicholson, 21 Vet. App. 235 (2007). However, that decision also concluded that the appellant was not prejudiced by the notice error because he was ineligible for VA benefits as a matter of law. Id. In this case, although the appellant was not provided with VCAA notification in the context of a separate VCAA letter, the Board finds that no prejudice has resulted. Based on his own allegations, the claim that cannot be substantiated as a matter of law. Here, the appellant was notified of the requirement that he establish veteran status in the March 2009 statement of the case, which also provided actual notice of all types of service that VA recognizes as active service. He failed to provide or identify any evidence that would entitle him to veteran status under any of the provisions. At the Travel Board hearing in June 2012, the undersigned fully explained the procedural aspects of the claim, as well as the issue on appeal, and asked questions designed to elicit evidence which might establish his status as a veteran. No additional potential evidence or information was identified. This action supplements VA's compliance with the VCAA and satisfies 38 C.F.R. § 3.103 (2012). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Under the VCAA, VA also has a duty to assist claimants in the development of a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The service department has not been asked to verify the appellant's claimed service, because he did not claim any service that can be recognized as active service. In the Travel Board hearing, the appellant waived initial consideration of evidence received at the hearing. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. No reasonable possibility exists that any additional assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In this regard, the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As set forth in more detail below, the appellant's appeal must be denied as a matter of law. II. Basic Eligibility for VA Pension The appellant contends, in essence, that he should be entitled to VA benefits because he assisted the U.S. military during the Vietnam War. Non-service connected pensions are payable to veterans of a period of war who are permanently and totally disabled and meet certain service and income requirements. A veteran meets the requirements if such veteran served in the active military, naval, or air service for an aggregate of ninety days or served at any time during a period of war and was discharged or released from such service for a service-connected disability. 38 U.S.C.A. § 1521. The issue for consideration in this case is whether the appellant has established his status as a "veteran." The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101 (2). The term "active military, naval, or air service" includes active duty, active duty for training, and inactive duty. 38 U.S.C.A. § 101 (24). The term "active duty" means full time duty in the Armed Forces. 38 C.F.R. § 101 (21). The term "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard including reserve components thereof. 38 U.S.C.A. § 101 (10). Statutes and regulation also provide that other specified individuals and groups are considered to have performed active military, naval, or air service for the United States. 38 U.S.C.A. §§ 106, 107; 38 C.F.R. § 3.7. The Cambodian Army and its soldiers are not among those individuals or groups listed in the statutes and regulation. In his original claim for VA pension filed in September 2008, the Veteran indicated that he was born in January 1940 in Vietnam. He reported it had been promised to him and others who volunteered with the Special Forces that they would be recognized as a member of the United States military and eligible to receive veteran's benefits rather than Supplemental Security Income (SSI) from the Social Security Administration (SSA). He said he had been a sergeant in the United States military. He reported having been hospitalized from October 1964 to May 1965 in Saigon. He also submitted an authorization for the release of records for Saigon Hospital (Cho Ray), Vietnam, stating that he had been treated for an injury in October 1964. In a December 2008 letter, as well as in his subsequent notice of disagreement, he said that he served the United States during World War II [sic] in Battambang, Cambodia, representing and defending the United States. He feels this time should be counted for him to qualify for VA benefits. He points out that he is now a United States citizen. In support of his claim, he submitted an undated statement witnessed by a retired colonel, apparently from the Cambodian military. This documented stated that the appellant's military service was in the Cambodia Army, and that he was on active duty from January 1970 to September 1975. The document included a list of service locations in Cambodia, as well as training in South Vietnam, during that period. The document contained the statement "ATTACHMENT TO UNITED STATES ASSISTANCE COMMAND, VIETNAM." However, the document has no official markings from the U.S. Department of Defense or any United States or foreign military agency. At his Travel Board hearing in June 2012, the appellant testified that he went into Vietnam and worked with the South Vietnamese soldiers, and was with the American soldiers. He helped them out while fighting the Viet Cong. He said he initially was injured during the Vietnam conflict, and now cannot work. He testified that back at that time, they had selected some men to join to help out the American soldiers. When the Americans went into the country, he joined in and helped them out. He stated that a Cambodian leader had selected some soldiers to join in with the Americans back in 1960. He said that Americans picked the Cambodians to join in with the American service, and that none of the Vietnamese were in that service. There were just Cambodian servicemen that had been selected to help out American soldiers. He testified that he was paid by the Americans in American dollars. At the hearing, the appellant submitted a certificate of completion of a program in English as a Second Language, Cultural Orientation, and Pre-Employment Training, offered at Pulau Galang, Indonesia, dated in October 1985. He also submitted a certificate, accompanied by an English translation, issued by the "Branch Office of the Veteran at Pulau Galang Refugee Camp," certifying that he had been a Sergeant in the Special Force. His immigration country was U.S.A. The document was dated in 1985. For the purpose of establishing eligibility for pension benefits, VA may accept evidence of service submitted by the claimant without verification from the service department if the evidence is a document issued by the service department; is certified by certain other parties; contains the needed information as to length, time, and character of service; and in the opinion of VA adjudicators is genuine and the information contained in it is accurate. When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification from the service department. 38 C.F.R. § 3.203. In this case, however, neither the testimony nor the documentation submitted by the appellant alleges that he actually served in the United States military, or in one of the positions or groups accepted as active service. Instead, his essential argument is that he was a member of an allied armed force and provided assistance to United States forces in a combat theater, and that he later became a United States citizen. However, VA is bound to apply the law as it stands, which does not allow for veteran status to be applied, based on the facts presented by the appellant. The Board observes that the facts as provided by the appellant contain numerous inconsistencies, but the Board attributes these to a language barrier. Where inconsistent, the hearing testimony is the most probative, because the appellant was accompanied by his niece, who interpreted for him. In sum, the Board concludes that eligibility for a non-service connected pension is not warranted because the undisputed facts establish that the appellant did not perform active military, naval, or air service in the Armed Forces of the United States or was an individual or member of a group considered to have performed such service. Therefore, the appellant is not a veteran for the purposes of a non-service connected pension. Basic eligibility for a non-service-connected disability pension is precluded based on the nature of the appellant's foreign military service. 38 U.S.C.A. §§ 106, 107; 38 C.F.R. § 3.7. The law is dispositive, and the Board must deny the appeal. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Basic eligibility for non-service-connected VA pension benefits is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs