Citation Nr: 1318702 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-01 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: African American PTSD Association ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from April 1978 to December 1979, and had a period of active duty for training from July 1975 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. This case was the subject of a Board remand dated in January 2012. As noted in the Board's January 2012 remand, in his January 2009 VA Form 9 the Veteran expressed that he wanted to appear for a hearing before a member of the Board. The RO attempted to accommodate the Veteran's request for a hearing. He was scheduled for Board hearings in March 2010 and September 2011. He requested that both hearings be rescheduled. He was scheduled for another hearing in December 2011 but did not respond to the RO's communications requesting confirmation of attendance. The hearing was canceled. The RO has attempted several times to accommodate the Veteran's request for a hearing. The Board finds that the Veteran was given more than one opportunity to present for a hearing, and did not sufficiently cooperate on VA's third attempt to ensure that such a hearing be scheduled. The duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has made extended efforts to schedule the Veteran for the requested hearing, and though unsuccessful in doing so, has satisfied its duty to assist in seeking to schedule the requested hearing. FINDING OF FACT The Veteran did not have active service during a period of war. CONCLUSION OF LAW The Veteran does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. 38 U.S.C.A. §§ 101, 1501(4), 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board notes that the enactment of the VCAA has no material effect on adjudication of the claim for pension benefits currently before the Board. See Mason v. Principi, 16 Vet. App. 129 (2002) (VCAA not applicable to nonservice- connected pension claims in which the law and not the evidence was dispositive). In Dela Cruz v. Principi, 15 Vet. App. 143 (2001), the Court held that the enactment of the VCAA does not affect matters on appeal when the question is one limited to statutory interpretation. See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). As such, no further action is required pursuant to the VCAA with regards to the issue of entitlement to pension. See also 38 C.F.R. 3.159(d)(1) (circumstances where VA will refrain from or discontinue providing assistance include ineligibility for the benefit sought because of lack of qualifying service). In its January 2012 remand of this matter, the Board requested that the RO seek verification from the service department of the appellant's periods of active service and seek to obtain all active duty and reserve records. To the extent the RO has not completed this requested development in full, this is no more than harmless non-prejudicial error; there is no reasonable possibility that any further assistance would result in substantiation of the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence now of record is sufficient to constitute conclusive service department verification that the Veteran had no active service during a period of war. No further development is warranted, because any additional development or notification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and in the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his or her claim, the VCAA does not apply). To the extent that VCAA is applicable, the VA attempted to verify service and such was accomplished. Merits of the Claim Under the provisions of 38 U.S.C.A. § 1521, pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of the veteran's willful misconduct. A veteran meets the service requirements for nonservice-connected pension benefits 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. See 38 U.S.C.A. § 1521(j). 38 C.F.R. § 3.3 provides that basic entitlement to pension exists if a veteran served in the active military, naval, or air service for 90 days or more during a period of war; or served in the active military, naval, or air service during a period of war and was discharged or released from such service for a service-connected disability; or served in the active military, naval, or air service for a period of 90 consecutive days or more and such period began or ended during a period of war; or served in the active military, naval, or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). The term "active military, naval, or air service" as defined for purposes of VA benefits includes (A) active duty; (B) 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 (C) any period of inactive duty training during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. See 38 U.S.C.A. § 101(24). 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(f). The Veteran contends that he is entitled to nonservice-connected disability pension. His Department of Defense Form 214, Certificate of Release or Discharge from Active Duty, indicates that he served on active duty from April 1978 to December 1979, with three months and 28 days of prior service. A record of the Veteran's military assignments, received by VA from the service department, indicates that the prior period of service was a period of active duty for training from July 8, 1975, to November 5, 1975, and sets forth in detail the dates of assignments during the Veteran's period of active service from April 1978 to December 1979. None of these periods occurred during a period of war. As the Veteran had no active service during a period of war, the Board finds that the Veteran does not meet the basic eligibility requirements for nonservice-connected pension benefits. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the U.S. Court of Appeals for Veterans Claims held that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law. In this case, the Veteran lacks legal entitlement to nonservice-connected disability pension due to nonqualifying service. Accordingly, the appeal is denied. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs