Citation Nr: 1322453	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  09-47 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota


THE ISSUE

Entitlement to basic eligibility for Department of Veterans Affairs improved pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

The Veteran served on active duty from June 1976 to October 1978.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota (RO).


FINDING OF FACT

The Veteran served on active duty from June 8, 1976, to October 3, 1978.


CONCLUSION OF LAW

The criteria for basic eligibility for VA improved pension benefits have not been met.  38 U.S.C.A. §§ 1521, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, pension is available 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 that are not the result of his own willful misconduct.  38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. § 3.3(a)(3) (2012).

VA improved pension, also called nonservice-connected pension, is a benefit payable to veterans of a period or periods of war because of nonservice-connected disability or age.  38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3(a)(3) (2012).  The qualifying periods of war for this benefit are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era and the Persian Gulf War.  38 C.F.R. § 3.3(a)(3) (2012).  Pertinent to the Veteran's military service, for veterans who did not serve in the Republic of Vietnam, the Vietnam period of war began on August 5, 1964 and ended on May 7, 1975.  The Persian Gulf War period of war began on August 2, 1990.  38 C.F.R. § 3.2(f), (i) (2012).

A Veteran meets the basic eligibility requirements for improved pension if he served in 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 without presumption of law; (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 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2012).

The Veteran served on active duty from June 8, 1976, to October 3, 1978.  That entire period of service falls outside all periods of war for VA purposes.  38 C.F.R. § 3.2 (2012).  Accordingly, the Veteran has no service of any kind during a period of war, and thus, he does not meet the requirements for eligibility under 38 C.F.R. § 3.3(a)(3).  Therefore, the Veteran does not meet the minimum eligibility requirements for basic entitlement to nonservice-connected pension and this claim must be denied.

Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran meets the basic eligibility requirements for improved pension, and entitlement to payment of improved pension benefits is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to nonservice-connected disability pension benefits is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs