Citation Nr: 1330764 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-00 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Loan Center in Winston-Salem, North Carolina THE ISSUE Entitlement to VA home loan guaranty benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) and his spouse ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 decision by the above Department of Veterans Affairs (VA) Home Loan Eligibility Center in Winston-Salem, North Carolina. In March 2013, the Veteran testified in a Board hearing in Washington, DC before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. After reviewing the contentions and evidence of record, the Board finds that the issue on appeal is more accurately stated as listed on the title page of this decision. In this regard, in the November 2010 Statement of the Case, the Home Loan Eligibility Center identified the issue on appeal as whether new and material evidence has been received to reopen a claim of entitlement to VA home loan guaranty benefits; however, the Veteran submitted a timely Notice of Disagreement in March 2010 regarding the February 2010 decision. He subsequently perfected the appeal in November 2010. Also in this regard, the Board notes that claim number identified during the March 2013 Board hearing, as well as in various documents in the claims file, differs from the claim number in the Veterans Appeals Control and Locator System (VACOLS). After ensuring the proper file is associated with the proper appellant and for consistency, the Veteran's claim number will be used as listed in VACOLS. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not enter service after September 7, 1980 and did not complete a continuous period of active duty of at least 24 months. 2. The Veteran did not complete a total service of at least six years in the Selected Reserve. 3. The Veteran is not shown to be a "veteran" under the laws pertaining to the award of VA home loan guaranty benefits. CONCLUSION OF LAW The legal criteria for basic eligibility for VA home loan guaranty benefits are not met. 38 U.S.C.A. §§ 3701, 3702, 5303A (West 2002 & Supp. 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Whereas here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); citing Livesay v. Principi, 15 Vet. App. 165 (2001). Regardless, some discussion of the March 2013 Board hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. In this case, entitlement to VA home loan guaranty benefits was identified as an issue at the Board hearing. Information was elicited from the Veteran by the undersigned concerning his length of service and character of service. Sources of evidence relevant in this regard were discussed during this process. As such, these actions fulfilled the duties under 38 C.F.R. § 3.103(c)(2). Eligibility for VA Home Loan Guarantee The Veteran seeks basic eligibility for VA home loan guaranty benefits as found at Chapter 37, Title 38, United States Code. The Veteran does not dispute that he served on active duty for less than 24 months after September 7, 1980. In his March 2010 Notice of Disagreement and during the March 2013 hearing before the undersigned, the Veteran asserted that the character of discharge assigned (under dishonorable conditions) was incorrect given the circumstances of the time. The controlling law provides that a certificate of eligibility for VA home loan guaranty benefits is granted only to veterans who satisfy basic entitlement criteria. The criteria, as found at 38 U.S.C.A. § 5303A, are as follows: (a) Notwithstanding any other provision of law, any requirements for eligibility for or entitlement to any benefit under this title or any other law administered by the Secretary that are based on the length of active duty served by a person who initially enters such service after September 7, 1980, shall be exclusively as prescribed in this title. (b)(1) Except as provided in paragraph (3) of this subsection, a person described in paragraph (2) of this subsection who is discharged or released from a period of active duty before completing the shorter of- (A) 24 months of continuous active duty, or (B) the full period for which such person was called or ordered to active duty, is not eligible by reason of such period of active duty for any benefit under this title or any other law administered by the Secretary. (2) Paragraph (1) of this subsection applies- (A) to any person who originally enlists in a regular component of the Armed Forces after September 7, 1980; and (B) to any other person who enters on active duty after October 16, 1981, and has not previously completed a continuous period of active duty of at least 24 months or been discharged or released from active duty under section 1171 of title 10. (3) Paragraph (1) of this subsection does not apply- (A) to a person who is discharged or released from active duty under section 1171 or 1173 of title 10; (B) to a person who is discharged or released from active duty for a disability incurred or aggravated in line of duty; (C) to a person who has a disability that the Secretary has determined to be compensable under chapter 11 of this title; (D) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; (E) to benefits under chapter 19 of this title; (F) to benefits under chapter 30 or chapter 37 of this title by reason of- (i) a discharge or release from active duty for the convenience of the Government, as described in sections 3011(a)(1)(A)(ii)(II) and 3012(b)(1)(A)(iv) of this title; (ii) a discharge or release from active duty for a medical condition which preexisted service on active duty and which the Secretary determines is not service connected, as described in clauses (A)(ii)(I) and (B)(ii)(I) of section 3011(a)(1) of this title and in section 3012(b)(1)(A)(ii) of this title; (iii) an involuntary discharge or release from active duty for the convenience of the Government as a result of a reduction in force, as described in clauses (A)(ii)(III) and (B)(ii)(III) of section 3011(a)(1) of this title and in section 3012(b)(1)(A)(v) of this title; or (iv) a discharge or release from active duty for a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as described in section 3011(a)(1)(A)(ii)(I) of this title; or (G) to benefits under chapter 43 of this title. The term "veteran" also includes an individual who is not otherwise eligible for housing benefits and who has completed a total service of at least six years in the Selected Reserve, and, following the completion of such service, was discharged from service with an honorable discharge, was placed on the retired list, was transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or continues serving in the Selected Reserve, or who was discharged or released from the Selected Reserve before completing six years of service because of a service-connected disability. 38 U.S.C.A. § 3701(b)(5)(A). The term "Selected Reserve" means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces. 38 U.S.C.A. § 3701(b)(5)(B). The record reflects that in February 2010, the Veteran's request for a Certificate of Eligibility for Loan Guaranty Benefits was denied because his character of discharge was not under honorable conditions required for eligibility to receive such a Certificate; however, the Board finds that the Veteran does not meet the basic eligibility requirements under either 38 U.S.C.A. § 5303A(b)(1) or 38 U.S.C.A. § 3701. In this case, the Veteran did not enter service after September 7, 1980 and did not complete a continuous period of active duty of at least 24 months. The record reflects that the Veteran served on active duty prior to September 7, 1980, from November 1951 to February 1953, for a period of approximately 21 months. As such, he does not meet the basic eligibility requirements under 38 U.S.C.A. § 5303A(b)(1). Also, the Veteran does not have at least six years in the Selected Reserve and he does not meet the requirements for eligibility for VA home loan benefits under 38 U.S.C.A. § 3701(b)(5)(A). In short, the Veteran is not eligible to receive a Certificate of Eligibility for Loan Guaranty Benefits. Notwithstanding the contentions to the contrary that are not authoritative in the federal administrative law context to which the Veteran has made his claim and appeal, the Veteran does not meet the clear and unambiguous statutory requirement of time in service (after September 7, 1980 and for a continuous period of active duty of at least 24 month, or at least six years in the Selected Reserve) to be eligible for VA home loan guarantee eligibility. As for exceptions to the basic eligibility requirements under 38 U.S.C.A. § 5303A, the Board observes that the provisions of 38 U.S.C.A. § 5303A(b)(3)(A-E) do not apply in the Veteran's case. In particular, the Veteran 1) was not discharged or released from active duty under Title 10 under Section 1171 or 1172; 2) was not discharged or released from active duty for a disability incurred or aggravated in line of duty; 3) was not found to have had a disability that the Secretary has determined to be compensable under chapter 11 of Title 38; 4) is not utilizing the provision of a benefit for or in connection with a service-connected disability, condition, or death; and 5) is not seeking benefits under Chapter 19 of Title 38. 38 U.S.C.A. § 5303A(b)(3)(F) does pertain to benefits under Chapter 37, Title 38, United States Code, the very benefits the Veteran seeks in this case; however, the Veteran was not discharged from active duty for a medical condition which preexisted service on active duty and which the Secretary determined was not service connected; was not involuntary discharged or released from active duty for the convenience of the Government as a result of a reduction in force; and was not discharged or released from active duty for a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty as described at section 3011(a)(1)(A)(ii)(I) of Title 38. For these reasons, the Board finds that the legal criteria for eligibility for VA home loan guaranty benefits have not been met. In cases such as this, where the law is dispositive, the claim should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Eligibility for VA home loan guaranty benefits is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs