Citation Nr: 1323270 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 13-03 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran has verified active military service from September 30, 1948 to June 12, 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2013, the Veteran submitted additional evidence directly to the Board with a waiver of initial RO consideration. As such, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In June 2013, the Veteran testified before the undersigned at a hearing held at the RO. A transcript of the hearing is associated with the Veteran's claims file. The Veteran had previously filed for and been denied nonservice-connected pension benefits by letters dated in September 2007, January 2008, and August 2009. The Veteran failed to perfect an appeal of the issue following those rating decisions, and therefore, they became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Generally, if a decision is not appealed, the claim will not thereafter be reopened and allowed except as provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C.A. § 7104(b) (West 2002). One exception to this general rule is that if new and material evidence is submitted, the claim may be reopened and allowed. 38 U.S.C.A. § 5108 (West 2002). However, the United States Court of Appeals for Veterans Claims (Court) has held that this exception is not applicable to pension cases. See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992) (a claim for nonservice-connected pension filed following final denial of previous nonservice-connected pension claim is a new claim not subject to new and material evidence requirement). The Court elaborated that "reopening," although occasionally used to refer to other types of claims, applies in its strictest sense only to allow reopening of previously denied claims for service-connected benefits. As a result, the Veteran is not required to submit new and material evidence in order to reopen the claim of entitlement to nonservice-connected pension benefits, and the Board has characterized the issue as shown on the title page. In an October 2010 written statement, the Veteran indicated that he wished to reopen his claims of entitlement to service connection for bilateral hearing loss, a back condition, and a bilateral eye injury. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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). FINDING OF FACT The Veteran had verified active military service from September 30, 1948 to June 12, 1950. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans 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, 3.326(a) (2012). Proper notice from VA must inform the veteran 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 Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) required more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Here, the Board finds that adequate notice has been provided as a November 2006 letter informed the Veteran as to what evidence is necessary to substantiate the claim of entitlement to nonservice-connected pension benefits. Regarding VA's statutory duty to assist, the Board initially notes that the Veteran's service records are fire-related and unavailable for review in this case. The Board is aware that when service records are unavailable through no fault of the veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, the Board concludes that the heightened duty to assist has been met. The claims file contains NA Form 13038, Certification of Military Service, dated in October 13, 2006, from the National Personnel Records Center (NPRC) (Military Personnel Records) National Archives and Records Administration (NARA) in St. Louis, Missouri, which reflects active service dates for the Veteran in the Army from September 30, 1948 to June 12, 1950. The document indicates that it serves as verification of military service and may be used for any official purpose. Although the two copies of the document of record do not carry an official seal, one of the documents reflects a signed certification that it is a true and exact copy of either an original document or of a copy issued by the service department or public custodian of records. In this case, the RO has repeatedly attempted to obtain verification of the Veteran's active service dates and his service records. In November 2006, the RO requested from the NPRC verification of the period of service from September 15, 1948 to June 19, 1950 and the Veteran's complete medical and dental records. The NPRC responded that the Veteran's records were fire-related. As a result, no separation documents were available from which to verify the Veteran's active service dates and certificate of discharge. In addition, there were no service medical records or records from the Office of the Surgeon General. The NPRC reported that service information from alternate sources had verified active service from September 30, 1948 to June 12, 1950, with an honorable discharge. In January 2007, the Veteran submitted the certified copy of the NA Form 13038 described above. In February 2007, the Veteran was notified that his service records may have been destroyed in a fire at the NARA on July 12, 1973. He was provided with a NA Form 13055, Request For Information Needed to Reconstruct Medical Data. The RO also submitted a second request to the NPRC in February 2007 requesting verification of active service dates for the period from September 30, 1948 to September 1, 1951. The NPRC responded in February 2007 stating that the records needed to respond to the request were fire-related and that the information obtained from alternate sources showed active service from September 30, 1948 to June 12, 1950. In March 2007, the Veteran was again notified of the NPRC's response and provided with a NA Form 13055 and a NA Form 13075 to verify his service dates and character of discharge. In April 2007, the RO requested that the NPRC furnish any records from the Office of the Surgeon General for the periods of September 30, 1948 to June 12, 1950 and from June 13, 1950 to September 30, 1951. The NPRC responded in May 2007 that there were no records for the Veteran from the Office of the Surgeon General. The evidence does not demonstrate that the Veteran responded to the requests for service records or the approximate months/season of the year of any treatment received. At the June 2013 Travel Board hearing, the Veteran stated that he did not recall hurting himself during the unverified period of active service. In August 2007, the RO made a formal finding regarding the unavailability of the Veteran's service records, and the Veteran was advised that VA had been unable to obtain his service records. The RO explained that VA had requested records multiple times since he initiated his claim for benefits and had continued to receive responses that his records were destroyed in the 1973 fire. The RO advised the Veteran that he should furnish VA with copies of his service records or any documents that could substitute for service medical records within 10 days of the letter. The RO also listed the possible alternate sources of records that the Veteran could submit. In response, the Veteran submitted several lay statements but no additional sources of evidence to verify the claimed period of service. Therefore, in light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile. The Board finds that the evidence now of record is sufficient to constitute conclusive service department verification that the Veteran had no active military 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). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the individual who conducts a hearing to fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran was assisted at the hearing by an accredited representative from The American Legion. The undersigned asked the Veteran specific questions regarding his service and suggested the submission of additional evidence. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 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) (West 2002); 38 C.F.R. § 3.3(a)(3) (2012). 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) (West 2002). 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. By regulation, World War II is defined as the period from December 7, 1941 through December 31, 1946, inclusive, or if the veteran was in service on December 31, 1946, continuous service before July 26, 1947 is considered World War II service. The Korean conflict is defined as the period beginning on June 27, 1950, and ending on January 31, 1955, inclusive. The Veteran contends that his service dates as shown by the evidence of record are incorrect. In the Veteran's initial informal claim received in October 2006, he stated that he was in the military from September 1948 to June 1950. The Veteran reported that after an injury, he was sent home because he was unable to perform as a GI. A December 2006 document reflects that the Veteran estimated that he entered service on September 15, 1948 and separated from service on June 19, 1950. On his August 2006 formal claim, the Veteran reported active service from September 15, 1948 to September 1, 1951. He indicated that he was separated from service at a base in California. A February 2009 VA treatment record shows the Veteran reported serving in the Army from 1948 to 1950. In a written statement received in September 2010, the Veteran averred that he went into the military in September 1948 and got out in June 1951. In a January 2011 written statement, the Veteran asserted that he served from the end of World War II to the early months of the Korean conflict. On his December 2012 substantive appeal, the Veteran asserted that the service dates reported by the RO were incorrect. He stated that he served at Aberdeen Proving Ground and at MacDill Air Force Base in Tampa, Florida. At the June 2013 Travel Board hearing, the Veteran testified that on June 12, 1950 he was serving at the MacDill Air Force Base and that on June 13, 1950 he was transferred with the Army to New Jersey, where he served until September 1950. The Veteran reported that in New Jersey he worked mostly in the mess hall to finish out his two years of service. The Veteran also submitted several lay statements in support of his claim. In a letter dated in March 2008, a family friend reported knowing the Veteran since he was in the Army and remembering that the Veteran came home in late September 1950. In a March 2009 written statement, D. Brown averred that she had known the Veteran for years and that he had told her that he served from September 1948 to September 1950. In May 2010, a friend of the Veteran stated that she had known the Veteran since he was in the Army in August of 1950. In a January 2013 letter, the Veteran's aunt asserted that the Veteran served in the Korean War for at least two months until September 1950. The Board acknowledges the lay statements of record, and in particular, the Veteran's assertions regarding his active service dates. However, the findings by a service department verifying a veteran's service under 38 C.F.R. § 3.203(c) are "conclusive and binding on the VA" for purposes of establishing service in the U.S. Armed Forces. Soria v. Brown, 118 F.3d 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 September 30, 1948 to June 12, 1950. As such, the Veteran's service did not include wartime service, and the requirements for basic eligibility for VA nonservice-connected pension benefits are not met. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court 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 pension benefits due to nonqualifying service. Accordingly, the appeal is denied. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs