Citation Nr: 1329916 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 13-17 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to VA nonservice-connected pension benefits. REPRESENTATION Appellant represented by: [redacted], Individual ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from July 1947 to April 1950. He also served in the U.S. Naval Reserves from July 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The Board notes that the Veteran has executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of his daughter in conjunction with the claim currently before the Board. It is a special power of attorney, pursuant to 38 C.F.R. § 14.630, which allows for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629. 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. The Veteran's active duty service extended from July 15, 1947, to April 14, 1950. 2. The Veteran did not serve during "a period of war" as defined by VA. CONCLUSION OF LAW The Veteran's active duty service does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. 38 U.S.C.A. §§ 101, 107(a), 1521 (West 2002); 38 C.F.R. §§ 3.1(f), 3.2, 3.3 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, the U.S. Court of Appeals for Veterans Claims has held that when the law and not the evidence is dispositive of the claim, these provisions are not applicable. See Sabonis v. Brown, 6 Vet.App. 426, 429-30 (1994). The regulations further provide that VA will refrain from providing assistance in obtaining evidence when the appellant is ineligible for the benefit sought "because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility." 38 C.F.R. § 3.159(d) (2013). In Mason v. Principi, 16 Vet. App. 129 (2002), the U.S. Court of Appeals for Veterans Claims (CAVC) noted that Congress observed the need to balance the duty to assist with futility of this duty when assistance of any kind would not substantiate the claim. Congress provided an example of such a case when "a veteran with only peacetime service sought pension, no level of assistance would help the veteran prove the claim; and if VA were to spend time developing such a claim, some other veteran's claim where assistance would be helpful would be delayed." Mason, 16 Vet. App. at 132. As will be explained below in greater detail, the Veteran only has peacetime service, and the law is dispositive in the instant claim for pension benefits. Accordingly, the Board finds that the statutes and regulations governing VA's duties to notify and assist are inapplicable in this case. II. Pension Benefits Under 38 U.S.C.A. § 1521(a), the Secretary shall pay pension "to each veteran of a period of war who meets [certain service requirements] and who is permanently and totally disabled from nonservice-connected disability not the result of the veteran's willful misconduct." Pursuant to 38 U.S.C.A. § 101(2), a "veteran" is a "person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." A veteran is entitled to pension benefits if he or she 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; (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); see also 38 C.F.R. § 3.3 (2013). Under 38 C.F.R. § 3.314, entitled "Basic pension determinations," nonservice-connected disability and death pension may be paid based on service during certain time periods, including during the Mexican border period, World War I, World War II, the Korean conflict, and the Vietnam era. 38 C.F.R. § 3.314(b) (2013). Regulations further provide that improved pension under Pub. L. 95-588 (92 Stat. 2497) will be payable by VA to veterans "of a period or periods of war" because of a nonservice-connected disability or age. 38 C.F.R. § 3.3(a)(3) (2013). The basic requirements for eligibility are enumerated in 38 C.F.R. § 3.3(a)(3)(i-vi). Essentially, a veteran will be eligible for improved pension benefits if he or she: served in the active military, naval, or air service for 90 days during a period of war (38 C.F.R. § 3.3(a)(3)(i)); or served in the active military, naval, or air service during a period of war and was discharged or released for a disability adjudicated service-connected or, at time of discharge, had such a service-connected disability that would have justified a discharge (38 C.F.R. § 3.3(a)(3)(ii)); served in the active military, naval, or air service for a period of 90 consecutive days and such period began or ended during a period of war (38 C.F.R. § 3.3(a)(3)(iii)); or served in the active military, naval, or air service for an aggregate of 90 days in two or more separate periods of service during more than one period of war (38 C.F.R. § 3.3(a)(3)(iv)); and meets the net worth and annual income limits (38 C.F.R. § 3.3(a)(3)(v)); and is 65 or older or is permanently and totally disabled from a nonservice-connected disability not due a veteran's own willful misconduct (38 C.F.R. § 3.3(a)(3)(vi)). Id. The term "period of war" is currently defined by VA regulation to include World War II service from December 7, 1941, through December 31, 1946, inclusive. 38 C.F.R. §§ 3.1(f); 3.2(d) (2013). If the veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service. Id. Additionally, it includes service during the Korean conflict, which began on June 27, 1950, and ended on January 31, 1955. 38 C.F.R. §§ 3.1(f); 3.2(e). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The facts of this case regarding the Veteran's service are not in dispute. The Veteran does not allege that he had any active duty service other than that from July 1947 to April 1950. However, the Board finds that his active duty service consists of only peacetime service. In concluding that the Veteran did not serve during a period of wartime, it is acknowledged that, because the Veteran entered service on July 15, 1947, his active duty service followed the wartime period of World War II, which ended on December 31, 1946, pursuant to the regulatory definition. 38 C.F.R. § 3.2(d). In this regard, the Board finds it significant that the evidence does not indicate, nor does the Veteran contend, that he was "in service on December 31, 1946," which is a prerequisite for continuous service before July 26, 1947, to be considered "World War II service." See id (providing an extended wartime period for veterans who served on December 31, 1946). If he had been on active duty on December 31, 1946, then the later date referenced by regulation-that of July 26, 1947-would apply to eligible World War II service. Id. However, the Veteran in this case first entered service in July 1947; therefore, the definition of World War II service applicable in this instance applies only to service from December 7, 1941, through December 31, 1946. See id. Importantly, the Veteran's Form DD-214 clearly indicates an entry into service in July 1947, with no "other service" noted. As there is no indication that the Veteran's DD-214 contains inaccurate information (to the contrary, the Veteran statement's concede this entrance date), the service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces. See Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Further, the Veteran's active service preceded that of the wartime period of the Korean conflict; his service during this time period consisted solely of Reserve service. For these reasons, the Board determines that the Veteran has not served during a period of war and that, as such, his dates of active service do not satisfy the necessary criteria for him to be considered eligible for nonservice-connected pension benefits. The Board acknowledges the Veteran's assertions that his post-World War II service was important to defending the efforts of those who fought in World War II and that his service during the "Cold War" should be considered wartime service. The Board is very appreciative of the Veteran's service and by no means downplays the importance of his duty. However, the Cold War is not a recognized period of war for VA purposes, and the Board is bound by the law made applicable to it by statute, regulations, and the precedential decisions of the appellate courts, and it is without authority to grant pension benefits to a veteran who does not meet the statutory eligibility requirements. See 38 U.S.C.A. § 7104 (West 2002). In conclusion, as the Veteran does not meet the threshold eligibility requirement of having served during a period of war, his claim for nonservice-connected pension must be denied. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs