Citation Nr: 1327047	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  12-30 642A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to nonservice-connected VA death pension benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1955 to September 1960.  Subsequently, he served in the Army National Guard from September 1979 to September 1990.  He died in August 2001.  The appellant is his surviving daughter.  This claim was initiated by the Veteran's surviving spouse in November 2009, but after her death in November 2009, the surviving daughter was substituted as the appellant.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 RO letter denying pension entitlement.  A notice of disagreement was filed in August 2010, a statement of the case was issued in September 2012, and a substantive appeal was filed in November 2012. 

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).


FINDING OF FACT

The Veteran is not shown to have had 90 days of active wartime service, and was not a Veteran of a war.


CONCLUSION OF LAW

The Veteran's service is not qualifying service for VA pension benefits.  38 U.S.C.A. §§ 101, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.4, 3.203 (2012).    


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants.  VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

Legal Criteria and Analysis

Eligibility for VA benefits is governed by statutory and regulatory law which defines an individual's legal status as an appellant of active military, naval, or air service.  38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6.

The Veteran's surviving daughter seeks non-service-connected death pension benefits.  Pension is provided for a Veteran with honorable active military service of 90 days or more during a period of war (or with a discharge or release from service during a period of war for a service- connected disability) who is permanently and totally disabled from non-service-connected disability not the result of the appellant's willful misconduct and who meets certain annual income limitation requirements. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3(a)(3).

Eligibility for VA pension benefits requires an initial showing that a Veteran served on active duty for at least 90 days during a period of war.  See 38 U.S.C.A. § 1521; 38 C.F.R. §§ 3.2, 3.3.  The term "period of war" is currently defined by statute to mean the Spanish-American War (from April 21, 1898 to July 4, 1902), the Mexican Border Period (from May 9, 1916 to April 5, 1917), World War I (April 6, 1917 to November 11, 1918), World War II (December 7, 1941 to December 31, 1946), the Korean Conflict (June 27, 1950 to January 31, 1955), the Vietnam Era (February 28, 1961 to May 7, 1975, for Veterans serving in Vietnam, and from August 5, 1964 to May 7, 1975, for all other cases), and the Persian Gulf War (from August 2, 1990 and ending on a date yet to be prescribed).  See 38 U.S.C.A. § 101; 38 C.F.R. § 3.2.

VA's determination of whether a claimant's service meets the threshold statutory service requirement is dependent upon service department records verifying the character of a claimant's service.  See 38 C.F.R. § 3.203.  A claim for non-service- connected pension benefits by a claimant whose 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 this case, the Veteran's service documents show that his only period of active service was from September 1955 to September 1960.  This is subsequent to the Korean Conflict and prior to the Vietnam Era.  See 38 U.S.C.A. § 101; 38 C.F.R.     § 3.2.  As this period of service does not fall, in whole or in part, within any period of war, it does not support the appellant's claim of entitlement to death pension.

The appellant does not dispute those dates of service, but instead, contends that she is entitled to nonservice-connected pension benefits based upon the Veteran's Army National Guard service from September 1979 to September 1990.  The appellant contends that this period of service was during the Persian Gulf War, and thus should qualify as wartime service.

The term "active military, naval, or air service" includes active duty, any period of ACDUTRA 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 (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); see also 38 C.F.R. § 3.6, which defines active duty, ACDUTRA and INACDUTRA. Thus, by statute, ACDUTRA is not considered active duty unless service connection is granted for a condition incurred during such period.

Here, the Board notes that the Veteran was not service-connected for any disability.  Therefore, there is no scenario under which the Veteran's National Guard service can be considered active duty service. 

The Board is bound by the law in this matter, and the pertinent statutes and regulations are clear that entitlement to the pension benefits sought requires, at a minimum, that the Veteran have served on active duty at some point during a period of war.  The Veteran's entire period of active service did not include any period of service during a period of war, and his subsequent National Guard service is not considered active service.  Consequently, the appellant is ineligible for nonservice-connected VA pension benefits.  In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  Sabonis, 6 Vet. App. at 430.


ORDER

The appeal is denied.


____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs