Citation Nr: 1318633 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 12-20 934A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served from November 1952 to May 1956; during such time, he did not perform any active duty other than for training purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. The Veteran died in March 1977. The appellant is his widow. 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 Veteran had no service other than active duty for training. 2. At the time of the Veteran's death, service connection was not in effect for any disease or disability. CONCLUSION OF LAW The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C.A. §§ 101, 107, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A. The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. However, for reasons expressed immediately below, the Board finds that resolution of the issue on appeal is based on the operation of law and that the VCAA is not applicable. See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. In Manning v. Principi, 16 Vet. App. 534 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Similarly, VA's General Counsel has held that VA is not required to provide notice of the information and evidence necessary to substantiate a claim, or to assist a claimant in developing evidence to substantiate a claim, where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOGCPREC 5-2004. This case deals with the issue of whether the appellant meets the threshold eligibility requirements established by statute for a nonservice-connected death pension. The pertinent facts in this case are not in dispute; application of pertinent provisions of the law and regulations will determine the outcome. The Board finds that no amount of additional evidentiary development would change the outcome of this case, and therefore the provisions of the VCAA are not applicable. II. Analysis The appellant asserts that she should be awarded nonservice-connected death pension benefits based on the Veteran's service. Nonservice-connected death pension benefits are payable to a surviving spouse of a veteran of a period of war who meets the service requirements prescribed in 38 U.S.C.A. § 1521(j), or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, pension at the rate prescribed by law as increased from time to time under 38 U.S.C.A. § 5312. 38 U.S.C.A. §§ 101(12), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23. A veteran will have met the service requirements of 38 U.S.C.A. § 1521(j) if such veteran served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 C.F.R. § 3.3. The term "veteran of any war" is defined by statute and regulation, and means any veteran who served in the active military, naval, or air service during a period of war. 38 U.S.C.A. § 101(12); 38 C.F.R. § 3.1(e). The term " active military, naval, and 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 which occurred during such training. 38 C.F.R. § 3.6 (2012); see also 38 U.S.C.A. § 101(24). The term "period of war" is also defined by statute and regulation, 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 (beginning on August 2, 1990), 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. 38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2(f)(i). A claim for nonservice-connected pension benefits by a claimant where service department records fail to show threshold eligibility lacks legal merit or legal entitlement and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In July 2011, the National Personnel Records Center (NPRC) verified that the Veteran served from November 1952 to May 1956 and that during such time, he did not perform any active duty other than for training purposes. Thus, the only periods of service for the Veteran were periods of active duty for training (ACDUTRA); he had no active service. In addition, at the time of the Veteran's death, service connection was not in effect for any disease or disability. Therefore, the appellant would not be eligible for pension benefits based on any period of ACDUTRA. In this case, the Veteran did not have active duty service, including any active duty service during a period of war. All of the Veteran's service was ACDUTRA. In addition, there is no evidence of record showing that the Veteran was disabled from a disease or injury incurred or aggravated during a period of ACDUTRA. Service connection was not in effect for any disease or disability at the time of his death. Therefore, as the Veteran's service does not confer eligibility for nonservice-connected death pension benefits, the appellant's claim must be denied as a matter of law. See Sabonis, supra. ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs