Citation Nr: 1312944	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11-32 781	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Nashville, Tennessee


THE ISSUE

Entitlement to VA non-service-connected pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The appellant served in the Merchant Marine from August 7, 1945 to May 15, 1946.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2013, the appellant's representative submitted additional pertinent evidence to the Board and waived his right to have the RO initially consider it.  38 C.F.R. § 20.1304.

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 appellant's service in the Merchant Marine from August 7, 1945 to August 15, 1945 is considered active service during a period of war.

2.  The appellant's service in the Merchant Marine from August 16, 1945 to May 15, 1946 is not considered active service for VA pension purposes, and he did not have at least 90 consecutive days of active military service for VA pension purposes.


CONCLUSION OF LAW

The criteria for entitlement to VA non-service-connected pension benefits based on the appellant's merchant marine service have not been met.  38 U.S.C.A. §§ 101, 1521 (West 2002); 46 U.S.C.A. § 11201 (West 2002); 38 C.F.R. §§ 3.1(a), 3.2, 3.3, 3.7(x), 3.342 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

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)) redefined VA's duty to notify and assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012).

In this case, the VCAA is not applicable because the issue presented involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (holding that VA is not required to provide notice of the information and evidence necessary to substantiate a claim or assistance where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). 

Analysis

The appellant served in the United States Merchant Marine from August 7, 1945 to May 15, 1946.  He claims entitlement to non-service-connected VA pension benefits based on this service.

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), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012).  In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits.  38 C.F.R. § 3.7.

The term 'veteran' means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R. §§ 3.1(d), 3.6 (2012).  Service in the active military, naval, or air service includes service in the United States Armed Forces.  See 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).  The Merchant Marines is not included in the statutory definition of Armed Forces. 

Disability pension will be paid to a veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from non-service-connected disability not the result of willful misconduct.  38 U.S.C.A. §§ 1502, 1503, 1521.  As pertinent to this case, in order to have qualifying service for non-service-connected disability pension, a Veteran must have at least 90 consecutive days of active military service, part of which was during a wartime period.  See 38 U.S.C.A. § 1521(j)(3).  A period of war, in pertinent part, includes World War II, from December 7, 1941 through December 31, 1946, inclusive.  If a veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service.  38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2.  

On November 23, 1977, Public Law 95-202 was enacted, and in § 401 Congress provided the Secretary of Defense with authority, after consideration of factors listed in the statute, to designate the service of certain groups, which are "similarly situated" to the Women's Air Forces Service Pilots group and which rendered service to the U.S. Armed Forces, as "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs".  Public Law 95-202 § 401(a)(1) (as amended by Public Law 102-83, § 6(b), 105 Stat. 407 (1991)). Pursuant to Public Law 95-202 § 401, the Secretary of Defense promulgated regulations establishing the criteria for determining whether a group meets the requirements for active-duty-service consideration, 32 C.F.R. § 47.2 et seq. (2012), and delegating to the Secretary of the Air Force the authority to determine whether certain groups so qualify.  32 C.F.R. § 47.5(b)(8) (2012). 

The Secretary of the Air Force made a determination on October 18, 1985, that "the service of the World War II group known as the 'United States Merchant Seamen Who Served on Blockships in Support of Operation Mulberry' shall be considered active military service in the Armed Forces of the United States for purposes of all laws administered by [VA]."  50 Fed. Reg. 46,332 (Nov. 7, 1985). Similarly, on January 19, 1988, the Secretary of the Air Force made a determination that "the service of the 'American Merchant Marine in Oceangoing Service during the Period of Armed Conflict, December 7, 1941, to August 15, 1945,' shall be considered 'active duty' for the purposes of all laws administered by [VA]."  53 Fed. Reg. 2,775 (Feb. 1, 1988).

Based on these determinations, VA amended its regulations to include United States Merchant Seamen who served on blockships in support of Operation Mulberry and American Merchant Marines in oceangoing service during the period of armed conflict, December 7, 1941, to August 15, 1945, as groups considered to have performed active military, naval, or air service.  See 51 Fed. Reg. 6,410 (Feb. 24, 1986), 53 Fed. Reg. 16,875 (May 12, 1998); 38 C.F.R. § 3.7(x)(14), (15).

Hence, under 38 C.F.R. § 3.7, active service for individuals in the American Merchant Marine includes only service on blockships in support of Operation Mulberry during World War II, and oceangoing service during periods of armed conflict from December 7, 1941, to August 15, 1945.  38 C.F.R. § 3.7(x)(14), (15).  In other words, only United States Merchant Seamen who had such service are considered to have had active service.  Service outside of those dates is not qualifying service except for consideration of travel time.  See Pacheco v. West, 12 Vet. App. 36, 37 (1998).  No other service by Merchant Seaman or Marines has been recognized as constituting active military, naval, or air service for pension purposes.

The appellant's claims file contains three DD Form 214s.  The first reflects that he served in the Merchant Marine from August 7, 1945 to August 15, 1945.  A notation on the form indicates that this document was issued under the provisions of Public Law 95-202 (38 U.S.C. § 106 Note), and administratively establishes active duty service for the purposes of VA benefits.  The ship date was August 7, 1945, and the disc. date was August 15, 1945.  The vessel name was the A.S. Hansen, and the narrative reason for separation was "end of hostilities."

The second DD Form 214 shows that the appellant served in the Merchant Marine from August 16, 1945 to May 15, 1946.  A notation on the form indicates that this document was issued under Public Law 105-368 (46 U.S.C. Chapter 112), administratively establishes active duty service solely for benefits under Chapter 23 (relating to burial benefits) and Chapter 24 (relating to interment benefits) of 38 U.S.C.  The ship date was August 16, 1945, and the disc. date was October 11, 1945, and the vessel name was A. S. Hansen.  He subsequently served aboard the Ensley City from November 1, 1945 to November 28, 1945, and from November 28, 1945 to May 15, 1946.  The form also reflects that the period of service shown in block 12D above records service previously determined under Public Law 95-202 (38 U.S.C. Note) to establish active duty service for the purposes of VA benefits.  The Board notes that Block 12D on this form reflects 9 days of total prior active service.  

The third DD Form 214 combines the information from the first two forms, and reflects that the appellant served in the Merchant Marine from August 7, 1945 to May 15, 1946.  A notation on the form reflects that this document was issued under the provisions of Public Law 95-202 (38 U.S.C. § 106 Note) for dates of service between December 7, 1941 and August 15, 1945, and under Public Law 105-368 (46 U.S.C. Chapter 112) for dates of service between August 16, 1945 and December 31, 1946.  Under Public Law 95-202 this document administratively establishes active duty service for the purposes of VA benefits, and under Public Law 105-368 (46 U.S.C. Chapter 112), administratively establishes active duty service solely for benefits under Chapter 23 (relating to burial benefits) and Chapter 24 (relating to interment benefits) of 38 U.S.C.

Thus, the appellant's service from August 7, 1945 to August 15, 1945 is considered active service under the provisions of  38 C.F.R. § 3.7(x)(15).  He thus had 8 days of active military service during a period of war.  38 U.S.C.A. § 101(8); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.7(x)(15).  

However, in order for the appellant to be entitled to VA non-service-connected disability pension benefits, he must also have had at least 90 consecutive days of active military service.  See 38 U.S.C.A. § 1521(j).  And the remainder of his Merchant Marine service does not qualify as active military service for purposes of pension under the governing law and regulation.

The provisions of the Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, provide that Merchant Mariners who served after August 15, 1945, are eligible for certain VA benefits; however, the allowed benefits do not include VA compensation or pension benefits.  46 U.S.C.A. § 11201; see also M21-1MR, Part III, Subpart iii, Chapter 2, Section F, topic 36 (recognizing that Merchant Mariners served under the Army Transportation Service).   This service is considered to be active duty in the Armed Forces during a period of war only for purposes of eligibility for benefits under the following provisions of title 38:   Chapter 23 (relating to burial benefits), and Chapter 24 (relating to interment in national cemeteries).  46 U.S.C.A. § 11201.

Thus, while the appellant was in the Merchant Marine for several months after August 15, 1945, his Merchant Marine service after that date is not qualifying active service for purposes of pension benefits, and thus he does not have the requisite 90 consecutive days of active military service in order to be entitled to VA pension benefits.  See 46 U.S.C.A. § 11201; 38 U.S.C.A. § 1521(j).  

Under the facts and controlling law, the claim must be denied due to a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The Board acknowledges the appellant's contentions that his time spent as a Merchant Marine after August 15, 1945 should qualify him for VA pension benefits.  While sympathetic to this argument, the Board's jurisdictional statute provides that it is bound by applicable law and regulations.  38 U.S.C.A. § 7104.  Based on the governing law and regulations, pension based on the appellant's time as a Merchant Marine after August 15, 1945 is legally precluded; thus, the claim must be denied.  See 38 U.S.C.A. § 1521; 46 U.S.C.A. § 11201; 38 C.F.R. §§ 3.1(a), 3.3, 3.7(x).


ORDER

Entitlement to VA non-service-connected disability pension benefits is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs