Citation Nr: 1312752 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-47 041A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Houston, Texas THE ISSUE Entitlement to Department of Veterans Affairs healthcare benefits. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The appellant served on active duty during the period October 28, 1986, to December 8, 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 decision by the Department of Veterans Affairs (VA) Medical Center in Houston, Texas that denied the appellant's application for VA healthcare benefits. In his substantive appeal, received in December 2010, the appellant requested a hearing before a Member of the Board, and he was duly scheduled to testify in a hearing at the Houston VA Regional Office (RO) in August 2011. The appellant failed without explanation to appear for his scheduled hearing, and his request for hearing is accordingly deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT The appellant did not serve on active duty for at least 24 months and has no service-connected disabilities. CONCLUSION OF LAW The criteria for basic eligibility for VA healthcare benefits are not met. 38 U.S.C.A. § 5303A (West 2002; 38 C.F.R. § 3.12a (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As will be explained, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the specific duties to notify and assist imposed by VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Board now turns to the merits of the appeal. The appellant's DD Form 214 shows he served on active duty from October 28, 1986, to December 8, 1986. His net active service was 1 month and 11 days. The separation code is JFT, which signifies "unqualified for active duty - other." The narrative reason for separation on the DD Form 214 states "did not meet procurement med[ical] fitness standards - no disability." Character of service is stated to be "uncharacterized." (Uncharacterized entry-level separations are considered to be under conditions other than dishonorable; see 38 C.F.R. § 3.12(k)). The claim on appeal rises from the appellant's submission of a VA Form 10-10-EZ (Application for Health Benefits) in December 2009 in which he requested VA health and dental benefits. The appellant accurately related his dates of service, as shown by his DD Form 214 cited above. The appellant acknowledged by checkmark that he did not have a service-connected disability and that he was not discharged from service due to a disability incurred in or aggravated by service. Generally, a person who initially enters active service after September 7, 1980, and who is discharged or released from a period of active duty before completing the shorter of: (A) 24 months of continuous active duty, or (B) the full period for which such person was called or ordered to active duty, is not eligible by reason of such period of active duty for any benefit administered by VA. 38 U.S.C.A. § 5303A(b)(1); 38 C.F.R. § 3.12a(a), (b). The provision above does not apply: (A) to a person who is discharged or released from active duty under 10 USCA § 1171 (early discharge within one year of regular discharge) or 10 USCA § 1173 (hardship discharge); (B) to a person discharged or released from active duty for a disability incurred or aggravated in line of duty; (C) to a person who has a disability determined by VA to be service-connected; (D) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; (E) to benefits under 38 U.S.C.A. Chapter 19 (insurance); (F) to benefits under 38 U.S.C.A. Chapter 30 (educational assistance) or 38 U.S.C.A. Chapter 37 (housing and small business loans); and, (G) benefits under 38 U.S.C.A. Chapter 43 (employment and reemployment rights of veterans of the armed forces). 38 U.S.C.A. § 5303A(B)(2); 38 C.F.R. § 3.12a(c). The exceptions cited in 38 U.S.C.A. § 5303A(B)(2) cited above are not shown in this case, so the criteria of 38 U.S.C.A. § 5303A(b)(1) apply. The VAMC denied the appellant's claim in March 2010. The notice to the appellant advised him that he was ineligible for treatment because he had not completed 24 months of active service and did not qualify for one of the exemptions provided by law (early-out or hardship discharge; disability incurred in or aggravated in the line of duty; compensable service-connected disability; called or ordered to active duty for Operation Desert Storm/Shield; or, called or ordered to active duty for Operation Enduring Freedom or Operation Iraqi Freedom). In his Notice of Disability (NOD), received in March 2010, the appellant stated he had been discharged from service for being positive for the human immunodeficiency virus (HIV). He stated he had been tested without his knowledge while he was in basic training and summarily discharged without any information or knowledge about what HIV is. In his substantive appeal, received in December 2010, the appellant asserted that VA had improperly characterized his discharge from service. He stated that he had been afforded no say in the testing or in the discharge, and that he was also told at the time that he was being medically discharged. The appellant asserted he should have the same benefits as any other veteran. The Board finds in this case that the appellant clearly had less than 24 months of active service. As none of the exceptions provided in the statute apply, the claimed benefit must be denied as a matter of law. The appellant has argued that VA mischaracterized his discharge and that he was promised a medical discharge at the time of separation. However, the Board is bound by the service department's determination for the reason of a veteran's separation from military service and is not at liberty to change such determination. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant's recourse in such a situation is with the service department, not with VA. Finally, in regard to the appellant's assertion that he should have the same benefits as any other veteran, he appears to be making an argument that benefits should be granted as a matter of equity. However, the Board is without authority to grant benefits on an equitable basis. See 38 USCA §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Through the statute and the implementing regulations cited above, Congress has established a clear minimum period of active service that must be performed before VA benefits can be granted; the narrow and specific exceptions provided by Congress do not apply in this case. Because the appellant's period of active service does not satisfy the minimum established by law, the Board must deny the appellant's claim for entitlement to VA benefits on the basis of a lack of legal merit or of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to VA healthcare benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs