Citation Nr: 1333244 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-02 535 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania THE ISSUE Whether the appellant meets the basic eligibility requirements for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The appellant had active military service from July 1961 to June 1964. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2010 Administrative decision in which the ROIC denied the appellant's claim for nonservice-connected pension benefits. The appellant filed a notice of disagreement (NOD) in February 2011, and the RO issued a statement of the case (SOC) in December 2011. The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2012. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In October 2013, a Deputy Vice Chairman advanced this appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The appellant did not serve in the Republic of Vietnam, and did not have military service during the Vietnam Era as defined by law; hence, he did not have war time service for VA pension purposes. CONCLUSION OF LAW As the requirements for basic eligibility for entitlement to nonservice-connected pension benefits are not met., the claim for those benefits is without legal merit. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed him. As will be explained below, quite simply, the appellant's service does not constitute qualifying service for VA pension purposes. As he does not dispute the actual dates of his military service, claim service within the Republic of Vietnam, or claim another period of active service, there is no factual issue as to whether his service has been properly verified. In light of the above, the claim for nonservice-connected pension benefits lacks legal merit; hence, the duties to notify and assist imposed by the VCAA are not applicable in this appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Under the applicable criteria, VA shall pay nonservice-connected pension to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section), and who is permanently and totally disabled from non-service-connected disability not the result of his willful misconduct. 38 U.S.C.A. § 1521(a). A veteran meets the service requirements if he served in the active military, naval, or air service (1) for 90 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 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 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). Periods of war for VA pension purposes are specifically defined by VA statute and regulation. Pertinent to the claim on appeal, the Vietnam Era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a Veteran who served in the Republic of Vietnam during that period. 38 U.S.C.A. § 101(29)(A), (B); 38 C.F.R. § 3.2(e). The period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. Id. The appellant's Form DD-214 shows that he had active military service from July 1961 to June 1964. He had 1 year and 6 months of overseas service. In August 2010, the National Personnel Records Center (NPRC) informed the RO that the appellant's overseas service did not involve service in the Republic of Vietnam. The appellant has not disputed this information. As the appellant had no service in the Republic of Vietnam, the outcome in this case is controlled by the provisions of 38 U.S.C.A. § 101(29)(B) and the last sentence of 38 C.F.R. § 3.2(f) wherein the beginning date of pension qualifying service - August 5, 1964-occurred after the appellant was discharged in June 1964. Based on his dates of service, the appellant's documented period of active military duty occurred entirely during peacetime as defined by VA statute and regulation. In accordance with the governing legal authority, payment of VA nonservice-connected pension benefits may only be made to veterans of a period of war. Although the general rule requires that a veteran serve for a period of 90 days or more during a period of war, the exceptions to this rule would still allow payment of nonservice-connected pension to any individual who had at least 90 days of active military duty, during which there was at least one day which overlapped with a recognized wartime period. The appellant does not have one or more days of active military service during a recognized period of war. Accordingly, he is ineligible for an award of VA nonservice-connected pension benefits as a matter of law. The Board acknowledges the argument advanced by the appellant and his representative that the appellant served during a period of multiple conflicts with communist governments. He has submitted articles reflecting U.S. political involvement with Vietnam prior to August 5, 1964. However, the Board is without authority to grant benefits on the basis of equity, and cannot base its decision on its own particular view of the fairness of the application of a particular statute or regulation. 38 U.S.C.A. §§ 503, 7104; see Harvey v. Brown, 6 Vet. App. 416 (1994). The Board can only determine whether the Veteran meets all of the requirements of the benefit being sought and, if he/she is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Under these circumstances, the Board finds that the claim on appeal must be denied. Where as here, the law, and not the facts, is dispositive, the claim must be denied because of the absence of legal merit, or lack of entitlement under the law. Sabonis, 6 Vet. App. at 430. ORDER As the appellant does not meet the basic eligibility requirements for nonservice-connected pension benefits, the appeal is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs