Citation Nr: 1334445 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 03-35 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Eligibility for non-service connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1955 to March 1957. The Veteran also had service in the Army National Guard from May 1954 to July 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, PA. In July 2005, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development. The action specified in the July 2005 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have qualifying active service during a period of war. CONCLUSION OF LAW The criteria for basic eligibility for VA non-service connected pension benefits have not been met. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Non-Service Connected Pension VA will pay a pension to each veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own misconduct. 38 U.S.C.A. §§ 1502 , 1521 (West 2002). In pertinent part, eligibility for a pension may be established by a veteran having active service of either (1) 90 days or more during a period of war; (2) a period of 90 consecutive days or more when such period began or ended during a period of war; (3) or an aggregate of 90 days or more in two or more separate periods of service during more than one war; or (4) served in active military service and was discharged or released from such wartime service by reason of disability adjudged service-connected, or at time of discharge had a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A § 101(24) (West 2002); 38 C.F.R. § 3.6(a). Along with other periods not here applicable, the laws and regulations recognize June 27, 1950 through January 31, 1955 as a period of war. 38 U.S.C.A. § 101 (29), (33) (West 2002); 38 C.F.R. § 3.2 (2013). The Appellant served on active duty in the United States Air Force from June 1955 to March 1957. As such, the Board finds that the Appellant served in the military for more than 90 days. However, this service was not during a period of wartime. The Veteran also variously claims he had service in the Army National Guard from May 1954 to July 1955 or 1953 through 1955. Verification has been made of the Veteran's National Guard service from May 11, 1954 to July 24, 1955. This service was either active duty for training or inactive duty for training during the Korean conflict. However, service connection has not been awarded for any disability based on his Army National Guard service; thus, the appellant would not be eligible for pension benefits based on any period of ACDUTRA or INACDUTRA. In other words, there is no evidence that, during a period of ACDUTRA, the Veteran became disabled from a disease or injury incurred or aggravated in line of duty, or during any period of INACDUTRA, he became disabled from an injury incurred or aggravated in line of duty. As the Veteran's National Guard service was not active service, it cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service connected pension. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). The evidence of record does not include any official documentation showing that the Appellant had any other active military duty service during a period of war as defined by law or regulation. 38 C.F.R. § 3.2. Consequently, the Appellant lacks qualifying military service during a period of war, and his claim for non-service connected pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). With respect to the Appellant's claim of entitlement to a non-service connected pension benefits, the nature of the Veteran's National Guard service is the determining factor in this appeal. That is, at issue is whether the Veteran's National Guard service constitutes active service during a period of war. Consequently, the above-cited statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to this claim as the resolution is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Regardless, the Appellant was provided adequate notice via a November 2005 letter. ORDER Entitlement to non-service connected pension benefits is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs