Citation Nr: 1333214	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  10-13 854A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Basic eligibility for pension benefits.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Nathanson, Associate Counsel 







INTRODUCTION

The Veteran served on active duty from July 1978 to June 1983.  

This case comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In that decision, the RO denied the Veteran's claim for pension benefits because he did not meet the basic eligibility requirements, specifically the wartime service requirement.  Jurisdiction over this case was subsequently transferred to the RO in Columbia, South Carolina, and that office forwarded the appeal to the Board.   

In April 2010, the Veteran requested a videoconference hearing before a Veterans Law Judge.  A hearing was scheduled for April 2010 at the RO in Columbia, South Carolina.  A review of the file indicates that the Veteran did not attend the hearing nor did he provide a reason for his failure to attend.  Thus the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d).

The Board notes that the Veteran was previously denied pension benefits because he did not meet the basic eligibility requirements in September 1997 and April 2002.  During the pendency of this appeal, the Veteran also submitted a claim for pension benefits in November 2012 and the RO denied the Veteran's claim in July 2013.  However, the Board will review the claim on a de novo basis.  See Abernathy v. Principi, 3 Vet. App. 461, 464 (1992) ("We agree with the Secretary that claims for service-connected benefits or compensation differ from claims for non-service-connected benefits or pension, and that the term "reopening," although occasionally used to refer to other types of claims, applies, in its strictest sense, only to the process of presenting new and material evidence to allow a previously denied claim for service-connected benefits to be considered anew.  Accordingly, we hold that the Manio analysis does not apply to claims for pension benefits").

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDING OF FACT

The Veteran did not have service during a period of war as defined by VA laws and regulations.  


CONCLUSION OF LAW

The claim for pension benefits has no legal merit.  38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).   In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).  This is such a case. As discussed below, the facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to eligibility for pension benefits.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).  To the extent that the VCAA is applicable, the critical issue, dates of service, have been verified.  Furthermore, his VA Form 21-526s of 1991 and 2001 reflect the Veteran's report of only peacetime service.  Here, VA's limited duty has been met.  

Under VA laws and regulations, the payment of nonservice-connected pension benefits is provided to veterans who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service.  38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b).  A veteran meets the service requirements of that section if the veteran 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 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); 38 C.F.R. § 3.3(a)(3).  VA specifically defines periods of war include from June 27, 1950, through January 31, 1955, for the Korean conflict, from February 28, 1961 through May 7, 1975, for the Vietnam Era (in the case of veterans who served in Vietnam; otherwise from August 5, 1964 to the same end date), and August 2, 1990 through a date to be prescribed by Presidential proclamation or law for the Persian Gulf War. 38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2.  

The evidence reflects that his service does not fall within any period of war as defined by the applicable statutes and regulations.  His DD Form 214 reflects that his active service was from July 1978 to June 1983, between the Vietnam Era and Persian Gulf War.  While the Board notes that the his DD Form 214 does show he had 2 years and 7 months of prior service, his service personnel records reflect active duty only from July 1978 to June 1983.  The RO also requested that the Veteran specify if he had any additional service outside of July 1978 to June 1983.  The Veteran did not provide the requested information beyond his prior reports of service from 1978 to 1983.  Moreover, the Veteran does not contest that he did not have active service during a period of war.

The Board notes that the Veteran's representative, in the December 2011 VA Form 646, requested extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(2).  Extraschedular consideration is not warranted, however, as the regulation specifically requires the veteran meet basic eligibility requirements.  Id.  

In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Id. at 430.  As the above evidence reflects that the Veteran does not have active service during a period of war, and this is a threshold requirement for establishing entitlement to pension benefits, there is no legal merit to his claim for pension benefits, and the claim must be denied as a matter of law.


ORDER

Entitlement to basic eligibility for pension purposes is denied.  



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs