Citation Nr: 1319249 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 13-00 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the appellant's service in the United States Merchant Marines from July 1945 to April 1946 meets the criteria for active duty service for VA compensation purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant had verified service in the United States Coast Guard as a Merchant Marine from July 1945 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The appellant appeared before the undersigned Acting Veterans Law Judge at a Board hearing in April 2013; the claims file contains a transcript of that hearing. 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. Although the appellant's service with the U.S. Maritime Service began before August 15, 1945, he had no oceangoing service with the Merchant Marines certified prior to that date. 2. The appellant is not shown to have had active military, naval, or air service, and is not an individual or a member of a group considered to have performed active military, naval, or air service. CONCLUSION OF LAW Basic eligibility to receive VA compensation benefits is not established. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.7 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). In Palor v. Nicholson, 21 Vet. App. 325 (2007) the U.S. Court of appeals for Veterans Claims (Court) held that in claims where it is necessary to first establish veteran status proper VCAA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, the information the appellant is responsible for providing, and what information VA will seek to obtain concerning that element. The Board finds that all notification and development action needed to render a decision on the appellant's claim on appeal has been accomplished. Through notice letters in June and July 2010, the appellant was notified of the legal criteria governing his claim and the evidence needed to substantiate his claim. In the June 2010 letter, the Appellant was requested to provide a copy of his DD Form 214 and to inform VA of his MOS (military occupation specialty). He was advised that a DD Form 214 may be requested through the service department. In a June 2010 written statement, the Appellant indicated that he did not have additional records, but he completed a SF 180 pertaining to the development of military records which was included with a request for information from the National Personnel Records Center (NPRC). A July 2010 response from the service department indicates that the appellant's record was fire-related and no service treatment records or records from the Office of the Surgeon General were available. Another letter was sent to the appellant in July 2010 advising him of the fire-related records and requesting that he complete an NA Form 13055; the appellant did not respond to that request. An August 2010 formal finding of unavailability of service records noted a report of a phone call to the appellant wherein he stated he had no further records and thought further development for service records would be futile. Thereafter, the August 2010 decisional letter explained the reasons for the denial of entitlement to VA benefits: his Merchant Marine service did not qualify as active military service. The record reflects that the claimant is well aware that the critical question in the matter at hand is whether he had active military service as defined in VA law and regulations, and the impact of his service in the Merchant Marine on that matter. It is not alleged that notice was in any way lacking. Furthermore, the Board points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal decided herein. The appellant has submitted certificates of his service issued to him by the United States Coast Guard. Furthermore, at his hearing the appellant did not dispute his dates of service or his type of service. His contention is that his claim "should be treated as any other Veteran that was going into one of the other branches of service." The appellant has not alleged that there are any outstanding records probative of his service in the Merchant Marine that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Legal Criteria, Factual Background, and Analysis The appellant is seeking VA compensation benefits for disabilities related to his service in the Merchant Marines. The appellant testified at his April 2013 Board hearing that he joined the Merchant Marines in July 1945. He has indicated that his first tour of duty upon enlisting was to the U.S. Maritime Service for basic training, his initial sea duty with the Merchant Marines began on November 23, 1945, and he was discharged on July 18, 1946. 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); 38 C.F.R. §§ 3.1, 3.6. 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); 38 C.F.R. §§ 3.1(d), 3.6. 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. Under 38 C.F.R. § 3.7, active service for individuals in the American Merchant Marines includes only oceangoing service during periods of armed conflict from December 7, 1941, to August 15, 1945. 38 C.F.R. § 3.7(x)(14), (15). Specifically, United States Merchant Seamen who served on blockade ships in support of Operation Mulberry during World War II and American Merchant Marines who were in Oceangoing Service during the period of armed conflict from December 7, 1941, through August 15, 1945, 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). Here, the appellant has submitted evidence of Merchant Marine service consisting of copies of a U.S. Coast Guard Merchant Marines identification card, Certificates of Discharge, a Trip Card, and a U.S. Maritime Service Release from Active Duty Certificate/War Shipping Administration. However, as noted above, the appellant does not allege, nor does the record show, that he had oceangoing service with the Merchant Marines prior to November 1945. Thus, it is clear that his period of service cannot be considered "active military service" under the provisions of Public Law No. 95-202 § 40, 91 Stat. 1433, 1449-50 (Nov. 23, 1977) for purposes of VA compensation. The Board notes an April 2011 letter from the U.S. Coast Guard in response to the appellant's request for a DD Form 214. The letter indicated that the appellant was not shown to have oceangoing service during WWII, prior to November 23, 1945. Although he may have participated in training courses with the U.S. Maritime Service, such documentation could not be used as evidence of active, oceangoing service during WWII. The letter indicated that the U.S. Maritime Service was not a uniformed armed service, and a DD Form 214 could only be issued for oceangoing service during WWII and not for training time. The appellant contends that his training time with the U.S. Maritime Service from July 1945 to November 1945 should be recognized as equal to that in other branches of the armed services. It is significant to point out, however, that 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 only. Pertinent to the current appeal, the allowed benefits do not include VA compensation or pension benefits. See also M21-1MR, Part III, Subpart iii, Chapter 2, Section F, topic 36 (recognizing that Merchant Mariners served under the Army Transportation Service). Thus, even if the appellant were recognized as a World War II veteran, it would be only for those limited benefits allowed under Public Law 105-368 (i.e., burial and internment benefits). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d at 749. The Board is sympathetic to the appellant's situation. However, under the current laws and regulations his service in the Merchant Marine does not qualify him for status as a veteran for compensation purposes. As discussed above, he has not submitted any evidence of qualifying service. Therefore, to the extent that the appellant contends he should be granted veteran status, such arguments essentially constitute a theory of equitable relief. However, the Board is without authority to grant relief on an equitable basis. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Rather, the Board is bound by the laws and regulations of the VA. 38 U.S.C.A. § 7104. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. As the appellant has not been found to have had qualifying military service, he is not entitled to status as a veteran or compensation benefits as a matter of law, and his claim for compensation benefits must be denied. The Board has considered the benefit of the doubt rule in this case, per the appellant's request. However, as the claim must be denied as a matter of law, by application of undisputed facts to the applicable laws and regulations, there is no basis or opportunity for application of the benefit of the doubt rule. Id. ORDER The appeal is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs