Citation Nr: 1314211 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 12-16 878 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Eligibility for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from January 1957 to May 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota, which denied a claim for pension benefits. Following the RO's most recent adjudication of the case in a December 2012 supplemental statement of the case (SSOC), the Veteran submitted additional evidence in the form of a statement and a newspaper article. He submitted this evidence without a waiver of initial RO consideration and adjudication. A review of the file, however, shows that this evidence is either duplicative or not pertinent to the issue on appeal. The sole question in this case is whether the Veteran's service meets the basic criteria for eligibility for nonservice-connected pension benefits. The article does not address that question and, to the extent that the Veteran's statement addresses the issue, it is duplicative of the information or argument provided in previous statements. Accordingly, a remand is not required to allow the RO the initial consideration of the additional evidence. 38 C.F.R. 20.1304 (2013); See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board further notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. (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).) FINDING OF FACT The Veteran did not serve in the active military, naval, or air service during a period of war. CONCLUSION OF LAW The basic eligibility criteria for nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101(12), 1501, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.6, 3.102, 3.159 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Nevertheless, in cases where the law, and not the evidence, is dispositive, the duty to notify and to assist is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought); VAOPGCPREC 2-2004. In the present case, the sole question on appeal concerns whether the Veteran's military service meets the basic criteria for eligibility to nonservice-connected pension benefits as a matter of law. No material facts are in dispute on this question. Because the law and not the evidence is dispositive, further analysis of the duty to notify and to assist is not necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the appellant). Analysis 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). The term "veteran" is defined as 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). "Active military, naval, or air service" includes active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty; or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. To establish basic eligibility for VA nonservice-connected pension benefits, a veteran must have served in the active military, naval, or air service: for a period of 90 days or more during a period of war; during a period of war and be discharged or released from such service for a service-connected disability; for a period of 90 days or more and such period either began or ended during a period of war; or, for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. See 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a) (2012). A veteran of any war means a veteran who served in the active military, naval, or air service during a period of war as defined in 38 C.F.R. § 3.2 (2012). Under 38 C.F.R. § 3.2(f), the Korean conflict was from June 27, 1950, through January 31, 1955, inclusive. The Vietnam Era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam (Vietnam), or as the period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2(i). Only the official service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. Venturella v. Gober, 10 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not eligible for nonservice-connected pension benefits. His DD Form 214 shows that he entered active service on May 10, 1957, and separated from service on May 3, 1960. He also had prior service, verified by the service department, from January 23, 1957, to May 9, 1957. His DD Form 214 also shows that he had a Reserve obligation terminating on January 22, 1963. There is no evidence that he ever served in Vietnam. These facts are not in dispute. In fact, the Veteran has repeatedly reported active duty service from May 1957 to May 1960. He has never reported serving on active duty while in the Reserves and he never reported service in Vietnam. Rather, he has asserted that his service from 1957 to 1960 should satisfy the requirements for eligibility for nonservice-connected pension benefits. The undisputed facts establish that the Veteran entered service after the end of the Korean Conflict. It is also evident that did not have any active service during the Vietnam era. Thus, he did not have qualifying service during a period of war, as defined in 38 C.F.R. § 3.2, for the purposes of establishing eligibility for nonservice-connected pension benefits. As previously noted, the Veteran did not dispute the periods or types of service documented in his official service department records in any statement submitted in support of his claim. Instead, he recognized that his service was not during a period of war as defined in the applicable regulations but contends that those dates of service are arbitrary, that it was unclear at the time he was serving whether the Korean conflict was in fact over, and that he should be entitled to the same benefits as those with service during those dates. The law is dispositive in this matter, and the Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c). See generally, Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (the Board must apply "the law as it exists . . . ."). 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 v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In summary, the Veteran has not been shown to have active military service during a period of war, which is a basic eligibility requirement established by Congress for entitlement to nonservice-connected disability pension benefits. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6. In cases such as this, where the law is dispositive, the claim is denied because there is no legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Eligibility for nonservice-connected pension benefits is not shown; the appeal is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs