Citation Nr: 1315609 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 12-13 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Center in St. Paul, Minnesota THE ISSUE Entitlement to VA nonservice-connected pension benefits. REPRESENTATION Appellant represented by: ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION 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). The National Personnel Records Center (NPRC) has confirmed that the Veteran served on active duty from December 1956 to December 1958, albeit acknowledging that that no separation documents are available to verify active duty dates and that this information was obtained from alternate sources. The Veteran disputes the date of his separation from the Army, alleging that he separated in December 1959. His contentions are addressed in this decision. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2004 administrative denial issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied the appellant's claim of entitlement to non-service connected pension benefits. In light of the complex procedural history concerning this issue, a brief description of it is included here. In July 2003, the Veteran submitted a completed VA Form 21-526 (Veteran's Application for Compensation and/or Pension) reflecting his desire to file a claim for nonservice-connected pension benefits due to in-service injuries to his neck and back. In the January 2004 administrative decision, the RO denied the Veteran's claim for non-service connected pension benefits. The Veteran expressed disagreement with the RO's denial of this claim in January 2004 and February 2004. The RO did not issue any Statement of the Case (SOC). In November 2004, the RO again notified the Veteran that his claim for VA pension benefits had been denied by the RO in the January 2004 administrative decision and notified him of his appellate rights. In December 2004, the Veteran continued to express disagreement with the RO's January 2004 denial of his claim for VA pension benefits. Again, the RO did not issue any SOC. In April 2012, the Veteran submitted a completed VA Form 21-526 with a claim for VA pension benefits. This claim was denied in a March 2012 administrative decision from the Pension Center at the RO in St. Paul Minnesota. After the Veteran expressed disagreement with the denial of this claim in April 2012, he was provided an SOC in May 2012, and perfected an appeal to the Board later that month with the submission of a timely substantive appeal. After reviewing the procedural history of this case, the Board concludes that the January 2004 administrative decision remained on appeal until the Veteran was provided with an SOC that addressed his claim in May 2012. Thereafter, the Veteran perfected a timely appeal to the Board. 38 U.S.C.A. §§ 7105, 7108; 38 C.F.R. §§ 19.9, 20.201, 20.200, 20.202, 20.302; see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Thus, the present appeal arises from the Veteran's July 2003 claim for VA pension benefits and the RO's January 2004 administrative decision denying such. In addition, while the Veteran's VA claims file was transferred to the Board from the Pension Center at the RO in St. Paul, Minnesota, original jurisdiction of the Veteran's claim resides in the RO in Los Angeles, California. The Board remanded the case for additional development in October 2012. The case has now been returned to the Board for appellate review. FINDING OF FACT The Veteran did not have any active service during a period of war. CONCLUSION OF LAW The legal requirements for establishing basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.17 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. The Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the elements required to establish entitlement to non-service connected pension in the Statement of the Case (SOC) sent to him in May 2012. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but his case was also readjudicated by way of a Supplemental Statement of the Case (SSOC) issued in February 2013, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as any timing error did not affect the essential fairness of the adjudication. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The claims file contains NA Form 13038, Certification of Military Service from the NPRC (Military Personnel Records) National Archives and Records Administration (NARA) in St. Louis, Missouri, dated in June 2003, which reflects dates of service for the Veteran in the Army from December 6, 1956, to December 5, 1958. This document is imprinted with the official seal of NARA, without which it would not be valid. The document states that it "serves as verification of military service and may be used for any official purpose." The Veteran has contended that his service dates as shown on this document are incorrect and that he actually was discharged from service in December 1959 rather than December 1958. In support of his contentions, he submitted DD Form 737, Immunization Certificate, reflecting that he was administered a polio vaccine at a military medical dispensary in July 1959. In various statements, he has argued that if he were discharged from the Army in December 1958, he would not have received the polio vaccination in July 1959. In October 2010, the Board remanded the case to attempt to obtain the Veteran's complete service personnel records and to again verify his dates of service. On remand, the RO ascertained that no such records existed for the Veteran and issued a Formal Finding of Unavailability of the Veteran's service personnel records in January 2013. In addition, a September 2004 Formal Finding of Unavailability of the Veteran's service medical treatment records is also of record. The NPRC has indicated that the Veteran's service records are believed to have been destroyed in a fire at the NPRC in 1973. In cases where a Veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist a Veteran in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). No other documents in addition to the records currently in evidence were found by VA on remand. In this case, the Board concludes that substantial compliance with the Board's remand instructions has been achieved. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (noting that a Court or Board remand confers upon a Veteran the right to substantial, but not strict, compliance with that order). The Board must point out, however, that it does not read into O'Hare the presumption that the missing service records would, if they still existed, necessarily support the appellant's claim. Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when a Veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to a Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). While it is unfortunate that the appellant's service records are unavailable, the appeal must be decided on the evidence of record. The appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. The appellant did not provide any information to VA concerning available records that he wanted VA to obtain for him that were not obtained. The appellant was given more than one year in which to submit evidence after VA gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the evidence needed for pension, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). II. The Merits of the Claim VA law and regulations provide for the payment of nonservice-connected pension benefits to Veterans with active service during a period of war (emphasis added) who are permanently and totally disabled from disability which is not the result of willful misconduct. 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.3. A Veteran meets the service requirements for pension if he served in active military, naval or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service "for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for medical disability;" (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) 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); 38 C.F.R. § 3.3(a)(3). The term "period of war" is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. These time periods constituting periods of war reflect that the Korean conflict is defined as the period beginning on June 27, 1950, and ending on January 31, 1955, inclusive, and the period of war for the Vietnam Era is 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 during that period, and the period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2(e)(f). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. On several occasions since the Veteran initially filed his claim for VA pension benefits in July 2003, he asserted that he served on active duty from December 6, 1956, to December 5, 1959. See the Veteran's July 2003 claim for pension benefits as well as his statements dated in July 2004, December 2004, and November 2005. At a July 2006 hearing before a Member of the Board, the Veteran testified, while addressing other matters, that he was not discharged from service until 1959, and that he underwent medical treatment at a military facility until December 1959. He also stated that he was not performing any duties--just coming back for treatment after he was let out in January or February of 1959, and he said that he did not think that he was being paid. See the July 2006 Board Hearing Transcript pp. 2-6. He also submitted DD Form 737, Immunization Certificate, reflecting that he was administered a polio vaccine at a military medical dispensary in July 1959. He has argued that if he were discharged from the Army in December 1958, he would not have received the polio vaccination in July 1959. However, all other records associated with the Veteran's VA claims file, to include the Veteran's March 2012 application for pension benefits, reflect that he was released from active duty in December 1958. See NA Form 13038, Certification of Military Service, from the NPRC in St. Louis, Missouri, dated in June 2003, and the Veteran's March 2012 application for pension benefits. The Certification of Military Service from NPRC reflects dates of service for the Veteran in the Army from December 6, 1956, to December 5, 1958. This document is imprinted with the official seal of NARA, without which it would not be valid, and it states that it "serves as verification of military service and may be used for any official purpose." In addition, on remand from the Board, the RO again contacted NPRC and again NPRC stated that the Veteran's dates of service were from December 6, 1956, to December 5, 1958. However, the NPRC acknowledged that "[n]o separation documents are available from which to verify active duty dates . . . ." It stated that the dates of service it was providing were obtained from "alternate sources". The findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997); see also Soria v. Brown, 118 Fed. 3rd 747 -749 (Fed. Cir. 1997). Accordingly, in this case, the Board accepts the determination of the NPRC that the Veteran served on active duty from December 1956 to December 1958. The Board notes, however, that it could remand the case to have the NPRC state what "alternate sources" were used in determining the service dates. However, in this case, this is not necessary because even assuming, without deciding, that the Veteran is right that he served until December 1959, his claim for non-service-connected pension still could not be granted. This is so because his service would still not meet the legal requirement for pension that service be during a period of war. Therefore, the Board concludes that the Veteran does not have qualifying service for, and is not entitled to, VA pension benefits. Consequently, resolution of the matter is wholly dependent on interpretation of the statutory and regulatory provisions pertaining to the nature of service that is necessary to establish basic eligibility for VA nonservice-connected pension benefits. Because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). This matter is governed by the statutes and regulations pertaining to the nature of service necessary to establish basic eligibility for VA nonservice-connected pension benefits. The Board has no authority to award benefits that are not authorized by law. See 38 U.S.C.A. §§ 501, 7104. The appellant does not meet the basic eligibility requirements for VA nonservice-connected pension benefits, and there is no legal basis on which his claim could be granted. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Basic eligibility for VA nonservice-connected pension benefits is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs