Citation Nr: 1311268 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 06-32 534 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Basic eligibility for VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The appellant served on five voyages between February 1991 and September 1994 with the Merchant Marines. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple RO notifications that the appellant's service in the Merchant Marines did not constitute active service for purposes of VA benefits. The most recent of these determinations was rendered in August 2004. The appellant timely disagreed with this determination and has perfected an appeal to the Board. She presented sworn testimony in support of her appeal during a hearing before the undersigned Veterans Law Judge in January 2013. FINDINGS OF FACT 1. The appellant's service with the Merchant Marines was subsequent to August 1945. 2. The appellant does not qualify for VA compensation or pension benefits. CONCLUSION OF LAW Basic eligibility for VA monetary benefits is not established. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.7 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, there are some claims to which the VA does not have any duty to notify and assist. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). One such claim is where, as here, there is no dispute as to the facts, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129 (2002). Nevertheless, the Board observes that the VA has performed multiple actions in the unsuccessful attempt to substantiate any military service which would render the appellant eligible for VA benefits, to include contacting the National Personnel Records Center, and the Coast Guard Personnel Command on her behalf. Analysis The appellant is seeking VA monetary benefits. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6. Service in the active military, naval, or air service includes service in the United States Armed Forces. 38 U.S.C.A. § 101(10) (Armed Forces defined as the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof). At various points in the record, the appellant has contended that she had service with the Merchant Marines, the United States Coast Guard, the United States Army, and that she remains in the Active Army Reserve to this day. During the January 2013 hearing on appeal, she testified that she supported the United States Military by delivering war supplies to the combat troops, that she put herself in danger by these actions, and that she was a Chief Steward with the Merchant Marines. Also during the hearing on appeal, there was some discussion of her work as a nurse in a United States Army hospital during the 1970s. It was clarified that she worked as a civilian nurse and was not inducted into the Army in this capacity. In support of her claims for various VA benefits, the appellant has submitted copies of a Merchant Mariner's Temporary Certificate of Identification, issued in March 1993. Also of record is a computer print-out from the Merchant Mariner Documentation System, reflecting that she served on five voyages between February 1991 and September 1994. She served as a messman, and as a steward/food handler on these voyages. The longest voyage upon which she served, involved 375 days at sea between January 1992 and February 1993, leaving from Wilmington, CA, and returning to the same port. She also submitted several Certificates of Discharge to Merchant Seaman, reflecting several of these voyages. The Coast Guard Personnel Command has certified that the appellant has never been in the United States Coast Guard at any time either in the regular Coast Guard or the Coast Guard Reserve. The National Personnel Records Center has certified that the appellant has no Army service. VA is bound by the service department's certification. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (1977), service of American Merchant Marines in Oceangoing Service, as well as Civil Service crew members aboard U.S. Army Transport Service and Naval Transportation Service vessels, during the period from December 7, 1941 to August 15, 1945, is considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs". See 53 Fed. Reg. 2775 (1988); see also 38 C.F.R. § 3.7(x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). However, as the appellant was a Merchant Mariner after August 15, 1945, her period of service is not considered active duty under these provisions. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, 112 Stat. 3315, provides that Merchant Mariners who served after August 15, 1945, are eligible for certain VA benefits such as burial and interment benefits; however, the allowed benefits do not include VA compensation or pension benefits, which are the benefits the appellant is seeking. See also M21-1MR, Part III, Subpart iii, Chapter 2, Section F, topic 36 (recognizing that Merchant Mariners served under the Army Transportation Service). The Board observes that the appellant has repeatedly expressed a sincere belief in her claim, and in her need for monies to supplement her Social Security benefits. Review of her medical records reveals that she has multiple medical problems, both physical and mental in nature. We also note that she has been adjudged eligible for VA medical care, a valuable, although non-monetary benefit. However, the Board does not have the authority to grant a benefit for which she is not eligible, regardless of our empathy for the appellant. The appellant's main argument, as expressed during the January 2013 hearing on appeal is that the law as it stands is simply unfair. She asserts that she put her life on the line during her missions delivering supplies and war materials to the troops on the front lines in Iraq, and that her situation was thus similar to those of the WWII Merchant Marines who were subsequently granted benefits. To some extent, she appears to be raising an argument couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. Thus, the Board is constrained to apply the law as Congress has created it and cannot extend benefits out of empathy for a particular claimant. We also observe that in a July 2005 letter from the Chief Mariner of the Records Branch of the United States Coast Guard, she was provided with the information as to how one would attempt to obtain Veteran status for mariners who served in Operation Desert Storm, along with the contact information and the address for filing such a request. ORDER Because the appellant's Merchant Marine service does not render her eligible for VA monetary benefits, the appeal is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs