Citation Nr: 1329976 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-19 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 2, 1995, to July 23, 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In March 2011, the Board remanded this case for additional development, and the case has been returned for further appellate review. An administrative opinion was obtained from the Director, Compensation Service, on the matter at issue in January 2012. That opinion has been associated with the claims folder. In February 2010, the Veteran was notified of the time and place of a Board hearing he had requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He failed to report, however, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran served on active duty from August 2, 1995, to July 23, 1997, when he was honorably discharged with a total of 1 year, 11 months, and 22 days of active duty service. 2. The Veteran's DD Form 214 reflects that he had no prior active or inactive service, and no subsequent service has been alleged. 3. The Veteran received a general discharge, under honorable conditions, pursuant to separation authority Army Regulation 635-200, Chapter 10; the separation code was KFS, for the good of the service, in lieu of trial by court-martial, with a re-entry code of "3." 4. The Veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); he was not discharged for a disability adjudged service-connected without presumptive provisions of law; at the time of discharge, he did not have a service-connected disability; and he does not currently have a compensable service-connected disability. CONCLUSION OF LAW The Veteran's active service does not meet threshold eligibility requirements for nonservice-connected pension purposes. 38 U.S.C.A. §§ 101, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.12a, 3.203, 3.314 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the Court held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See also VAOGCPREC 5-2004, Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001), and Mason v. Principi, 16 Vet. App. 129, 132 (2002) (stating that the VCAA is not applicable 'because the law as mandated by statute and not the evidence is dispositive of the claim'). The Board finds in the instant case that resolution of the issue on appeal is based on the operation of law and that the VCAA is not applicable. See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) (finding that the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). II. Nonservice-Connected Disability Pension Benefits The law authorizes the payment of a nonservice-connected disability pension to a wartime Veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a Veteran: (1) served in the active military, naval, or air service for ninety days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23. See 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.3(a)(3). As to the requirement of wartime service, a Veteran meets the service requirements of this section if he or she (1) served in the active military, naval, or air service for ninety days or more during a period of war; (2) 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; (3) served in the active military, naval, or air service for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) served in the active military, naval, or air service 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); 38 C.F.R. § 3.3(a)(3). The term "period of war" for pension purposes means 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. 38 U.S.C.A. § 1501(4); 38 C.F.R. § 3.2. As is relevant to this claim, VA currently recognizes the following as a period of war: August 2, 1990, through a date to be prescribed by Presidential proclamation law. See 38 C.F.R. § 3.2. Under the applicable law, a "veteran" is an individual who served in the active military, naval, or air service and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d); see also Harris v. West, 13 Vet. App. 509 (2000). "Active military, naval, or air service" includes active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty; and any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(21-24) (West 2002); 38 C.F.R. § 3.6 (2012). In cases such as the one at hand, there is another requirement for a claimant to be eligible for pension benefits. A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (early out), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term "minimum period of active duty" means, for the purposes of this section, the shorter of the following periods: (1) 24 months of continuous active duty (non-duty periods that are excludable in determining VA benefit entitlement (e.g., see 38 C.F.R. § 3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served); or (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a(a). The minimum period of active duty requirement does not apply: (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a (d). The threshold issue to initially address in a pension case is whether the Veteran has the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed. However, if he does not have the requisite wartime service, there is no need to proceed further or to address any other issue. The Veteran's DD Form 214 shows he served on active duty from August 2, 1995, to July 23, 1997, when he was given a general discharge under honorable conditions, with a total of 1 year, 11 months, and 22 days of active duty service. Therefore, the Veteran served during the wartime period of the Persian Gulf War for more than 90 days, establishing the basic criteria for wartime service. 38 C.F.R. § 3.3. Nonetheless, in this case, additional provisions apply to establish the minimum service needed for nonservice-connected pension benefits. As noted above, the Veteran's service is also covered by the provisions of 38 C.F.R. § 3.12a. With regard to the requirement that is established under that regulation, the Veteran did not serve the minimum period of active duty, nor did he complete his term of active duty service. 38 C.F.R. § 3.12a. The Board finds that the Veteran has not established the requisite minimum service for nonservice-connected pension benefits. As reflected on his DD Form 214, he served from August 2, 1995, to July 23, 1997, for a period of 1 year, 11 months, and 22 days of active duty service, which constitutes less than 24 months of continuous active duty. Id. Moreover, the Veteran also failed to complete the full period of service for which he had enlisted. His DD Form 214 expressly notes that the Veteran "has not completed first full term of service." The Board notes that the Veteran's DD Form 214 shows that he had no prior active or inactive service, thus precluding the possibility that he met that requirement through another period of active duty service. Rather, his DD Form 214 reflects that he received a general discharge, under honorable conditions, pursuant to separation authority Army Regulation 635-200, Chapter 10. The separation code is KFS, for the good of the service, in lieu of trial by court-martial. The re-entry code of "3" that is listed on the DD Form 214 indicates the Veteran is ineligible for reentry/reenlistment for military service, absent a waiver by the military. Therefore, from all objective indications, the Veteran did not complete his full term of service. In addition, although 38 C.F.R. § 3.12a(d) sets forth several exceptions to the requirement for a minimum period of active duty, the Veteran fails to establish that any of these apply. Here, the Veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge). He was not discharged for a disability adjudged service-connected without presumptive provisions of law. At the time of discharge, he did not have a service-connected disability. At present, he still does not have a compensable service-connected disability and, in fact, is not currently service connected for any disability. He does not currently have a claim pending for service connection. Lastly, he is not covered by any other exception listed in 38 C.F.R. § 3.12a(d). The Board is sympathetic to the Veteran's arguments but, unfortunately, is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Accordingly, since the Veteran does not satisfy the threshold minimum active duty service requirements, his claim for nonservice-connected pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426. ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs