Citation Nr: 1331194 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-08 548A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Home Loan Eligibility Center (RO) in Winston-Salem, North Carolina THE ISSUE Basic eligibility for VA home loan benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The appellant served with the United States Marine Corps from May 31, 1977, to July 15, 1977, at which point he was discharged under honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 decision by the VA Home Loan Eligibility Center in Winston-Salem, North Carolina. The appellant requested a hearing before a Veterans Law Judge via videoconference. Such a hearing was scheduled in March 2013, and he was provided with notice of the scheduled time and date. However, he failed to report for the hearing and has not made any attempt to show good cause for his failure. Under these circumstances, the request for a hearing is considered to have been withdrawn. 38 C.F.R. § 20.702(d). The Board will therefore proceed to review the appeal based upon all the evidence currently of record. FINDINGS OF FACT 1. The appellant served in the United States Marine Corps from May 31, 1977, to July 15, 1977. 2. The appellant is not shown to be a "Veteran" under the laws pertaining to the award of VA home loan benefits. CONCLUSION OF LAW The appellant is not eligible for VA home loan benefits. 38 U.S.C.A. §§ 101, 3701, 3702 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION In support of his application for VA home loan benefits, the appellant asserts that he was discharged from boot camp due to medical reasons and that he believes he should qualify for home loan benefits. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) ; 38 C.F.R. § 3.159(b)(1) ; Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, the United States Court of Appeals for Veterans Claims (Court) has held that the duties to notify and assist do not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (notice and duty to assist requirements are not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 5-2004. The question now before the Board is a legal one as there is no dispute as to the essential facts required to resolve the matter. The Board notes also that the issue at hand does not arise from the receipt of a "substantially complete application" from the appellant under 38 U.S.C.A. § 5103(a), but rather, arises by action of law under 38 U.S.C.A. §§ 3701 and 3702, which govern loan guaranty benefits. As the outcome of this case turns on the law rather than the evidence, the notice and duty to assist provisions of the law are inapplicable. 38 U.S.C.A. §§ 5103 , 5103A; Beverly v. Nicholson, 19 Vet. App. 394 (2006); Mason v. Principi, 16 Vet. App. 129 (2002). Analysis The appellant served in the United States Marine Corps from May 31, 1977, to July 15, 1977. According to his DD Form 214 MC, he was discharged under honorable conditions. The reason code provided on the form is "JKG1" indicating a discharge based upon fraudulent entry into service. He was not transferred to any reserve assignment, and was given a re-enlistment code indicating he was highly unlikely to be re-accepted into military service. No further details are provided on this Form, however. Careful review of his service treatment records reveals that he was considered fit for service upon entry examination and was again considered fit for service upon his discharge examination. Although the appellant has presented several claims to the VA for service connection for a psychiatric disability, none of the claims has been granted, and service connection is not in effect for any disability. A Veteran is eligible for housing loan benefits if that Veteran meets certain requirements. U.S.C.A. §§ 3701, 3702. As pertinent to this case, the term "Veteran" includes an individual who served on active duty for 90 days or more during World War II, the Korean conflict or the Vietnam era. It also includes a Veteran who after September 15, 1940, was discharged or released from a period of active duty for a service-connected disability. It also includes a Veteran who served after July 25, 1947, for a period of more than 180 days and was discharged or released therefrom under conditions other than dishonorable, or has served more than 180 days in active duty status and continues on active duty. A Veteran who served on active duty for 90 days or more during the Persian Gulf War or who served in the Selected Reserve and meets further criteria as to this service, as well as a Veteran who served on active duty for 90 days or more and was discharged by reason of a sole survivorship discharge, is eligible for housing loan benefits. 38 U.S.C.A. §§ 3701, 3702. In this case, the appellant meets none of these criteria. He did not serve during the Vietnam era, which is defined as the period beginning on August 5, 1964, and ending on May 7, 1975, in the case of a Veteran who did not serve in the Republic of Vietnam. 38 U.S.C.A. § 101(29). He did not serve the requisite period of time under any of the various circumstances outlined. He did not serve in the Selected Reserve, and was not discharged on account of a service connected disability. Accordingly, the appellant's service does not qualify him for "Veteran" status for purposes of VA home loan benefits and he does not meet the requirements for eligibility for VA home loan benefits under 38 U.S.C.A. §§ 3701, 3702. Thus, he is simply not eligible to receive a Certificate of Eligibility for Loan Guaranty Benefits. The Board has considered the appellant's argument that he was discharged from boot camp on account of medical reasons. Although this statement is not borne out by his service treatment records, which reflect that he was deemed fit for service upon discharge, it is essentially an irrelevant argument, as he is not in receipt of service connection for any disability. The law, not the evidence, is dispositive of the outcome of this case. As a matter of law, the appellant is not eligible for VA home loan benefits. Thus, the claim for eligibility for VA home loan benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Basic eligibility for the award of VA home loan benefits is denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs