Citation Nr: 1334526 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-27 582A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 administrative determination by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claim for pension benefits after an earlier June 2009 rating decision had granted him nonservice-connected pension benefits. In November 2011, the Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO. A transcript of that hearing is associated with the claims file. During the hearing the Veteran submitted additional evidence accompanied by a signed waiver of initial RO consideration of this newly-submitted evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800; 20.1304(c) (2012). FINDINGS OF FACT 1. In June 2009, the Veteran was awarded a nonservice-connected pension, effective September 27, 2008. 2. During a review of the Veteran's claims folder, it was discovered that although the Veteran had been awarded a nonservice-connected pension, he did not possess the requisite time in service that would make him eligible for such a pension. 3. The Veteran served on active duty from June 19, 1990, to May 4, 1992, when he was given a general discharge with a total service of one year, 10 months, and 16 days of active duty service. Additionally, the Veteran's Armed Forces of the United States Report of Transfer or Discharge (the DD Form 214) shows that he had no prior active or inactive duty service. 4. The Veteran did not complete his full term of enlistment. Prior to his end-of-enlistment, he was discharged from the US Navy for "misconduct - minor disciplinary infractions." Service personnel records also show that on May 1, 1992, he signed a document acknowledging that May 4, 1992 was his date of discharge and that he was not eligible for reenlistment. 5. The Veteran was not discharged or released from service pursuant to 38 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); he was not discharged for a disability adjudged to be service-connected; at the time of discharge, he was not adjudged as having a service-connected disability; and, when the Veteran was originally granted a nonservice-connected pension, he was not adjudged as having a service-connected disorder. CONCLUSION OF LAW The Veteran's active service did not meet the threshold eligibility requirements for nonservice-connected pension purposes. 38 U.S.C.A. §§ 101, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.12a, 3.203, 3.314 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2012). As the resolution of the Veteran's appeal is dependent on interpretation of the law and regulations pertaining to claims for VA benefits, no further development under the VCAA is warranted. Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); see also VAOPGCPREC 2-04; 69 Fed. Reg. 25180 (2004). Despite this, the record reflects that in correspondence dated in October 2008 and January 2009, the Veteran was advised of how to substantiate his claim for nonservice-connected pension benefits. The Veteran was also advised of what information and evidence he needed to submit, and what information and evidence VA would seek to obtain. He was also afforded an opportunity to provide information and evidence pertinent to the claim. Additionally, the October 2008 letter clearly informed him that he needed to meet a minimum active duty service requirement, which was typically two years. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Nonservice-Connected Pension Benefits The record shows that in a rating action issued in June 2009, the RO found that the Veteran was unable to secure and follow a substantially gainful occupation due to disabilities that were not service-connected. As such, the RO awarded a nonservice-connected pension, effective September 27, 2008. However, before the Veteran could be notified of this rating action, the RO reviewed the Veteran's claims file and, in correspondence also dated in June 2009, notified the Veteran that he was not eligible for nonservice-connected pension benefits because he served for less than the minimum active duty requirements for a disability pension. On appeal, the Veteran has conceded that he is a few days short of 24 months of active duty service, but contends that he meets the other qualifications for the pension. During a Board hearing before the undersigned in November 2011, the Veteran testified that he was discharged early because his mother had cancer and he was her only son. See hearing transcript at p. 4. He also testified that after discharge from active duty he worked or volunteered as a Navy recruiter from one to three months in his Mississippi hometown, so he may have exceeded the 24-month requirement of active duty service. Id. at pp. 7-8. He said that he remembered he worked as a recruiter until at least June 3, 1992, because that was his last birthday. Id. at p. 12. (The Board notes that his birthday is recorded as February 17, 1970, in the claims file and on his Virtual VA eFolder computer site.) The Veteran also expressed doubt about whether his travel time from discharge in California to Mississippi was counted towards his period of active duty. Id. at pp. 15-16. At one point the Veteran testified that he did not get paid for Navy recruiting in local schools, and at another point said that he was not sure whether he was paid for this work. Id. at pp. 10, 12, 15. He conceded that he never signed any documents about undertaking Navy recruiting. Id. at p. 15. He said that he was in uniform in town when he formally recruited on Wednesdays. He was not sure of the name of the individual who picked him up and dropped him off at schools, but this individual told the Veteran this recruiting work would be like Reserve duty until his paperwork went through. Id. at p. 11. He said that a certificate he received for this work later burned in a fire. Id. at p. 12. The law authorizes the payment of a nonservice-connected disability pension to a wartime veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a veteran: (1) served in the active military, naval or air service for ninety (90) days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23. See 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. § 3.3(a)(3) (2012). As to the requirement of wartime service, a veteran meets the service requirements of this section if he or she served in the 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 such 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). The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501(4); 38 C.F.R. § 3.2. With exceptions not here applicable, VA currently recognizes the following as periods of war: January 1, 1817, through December 31, 1898, inclusive; April 21, 1898, through July 4, 1902, inclusive; April 6, 1917, through November 11, 1918, inclusive; December 7, 1941, through December 31, 1946, inclusive; June 27, 1950, through January 31, 1955, inclusive; August 5, 1964, through May 7, 1975, inclusive; and August 2, 1990, through a date to be prescribed by Presidential proclamation or law. See 38 C.F.R. § 3.2. Under the applicable law, a "veteran" is an individual who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d); see also Harris v. West, 13 Vet. App. 509 (2000). The term "active military, naval, or air service" includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty. 38 U.S.C.A. §§ 101(22), 101(24), 1110, 1131; 38 C.F.R. §§ 3.6(a), 3.303(a). In this case, there is another requirement for the Veteran to be eligible for pension benefits. A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (an "early out"), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code, or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term minimum period of active duty means, for the purposes of this section, the shorter of the following periods: (1) twenty-four months of continuous active duty, non-duty periods that are excludable in determining VA benefit entitlement (e.g., see 38 C.F.R. § 3.15 ) are not considered as a break in service for continuity purposes but are to be subtracted from total time served; (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a(a). The minimum period of active duty requirement does not apply: (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a(d). The threshold issue to initially address in a pension case is whether the Veteran has the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed. However, if he does not have the requisite wartime service, there is no need to proceed further or address any other issue. The Veteran's DD Form 214 shows he served on active duty from June 19, 1990, to May 4, 1992, when he was given a general discharge, with a total service of one year, 10 months, and 16 days of active duty. It is noted on the DD Form 214 that the reason for the Veteran's discharge was for "misconduct - minor disciplinary infractions." Therefore, the Veteran served during the wartime period of the Persian Gulf War for more than 90 days, establishing the basic criteria for wartime service. 38 C.F.R. § 3.3. Nonetheless, additional provisions apply to establish the minimum service needed for nonservice-connected pension benefits. As noted above, the Veteran's service is also covered by the provisions of 38 C.F.R. § 3.12a. Concerning this, the Veteran did not serve the minimum period of active duty nor did he complete his term of active duty. 38 C.F.R. § 3.12a. By his own admission and confirmed by his DD Form 214, he served from June 1990 to May 1992, which is clearly less than 24 months of continuous active duty. Id. It is worth mentioning that his DD Form 214 shows that he had no prior active or inactive service, thus precluding the possibility that he met the latter requirement through another period of active duty service. Rather, his DD Form 214 reflects that he received a general discharge in May 1992 and that he was discharged because of misconduct. Moreover, his service personnel records reflect a document signed on May 1, 1992, in which the Veteran agreed that he was ineligible for reenlistment for military service. Therefore, from all objective indications, the Veteran did not complete his full term of service. In addition, although 38 C.F.R. § 3.12a(d) sets forth several exceptions to the requirement for a minimum period of active duty, the Veteran fails to establish that any of these apply. Here, the Veteran was not discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge). He was not discharged for a disability adjudged service-connected without presumptive provisions of law. At the time of discharge, he did not have a service-connected disability. While he now is service-connected for four disorders, according to a rating decision posted on his eFolder in July 2013, the effective date of those awards has been determined to be November 15, 2011 - nearly 20 years after he was discharged from service and more than two years after the nonservice-connected pension was originally awarded. Lastly, he is not covered by any other exception listed in 38 C.F.R. § 3.12a(d). Finally, the Board observes that the Veteran's testimony is not credible. Among the service personnel records found in the claims file is a document the Veteran signed on May 1, 1992 in two places. He signed first acknowledging that May 4, 1992 was to be his discharge date and that he was not eligible for reenlistment. He signed secondly declining participation in a voluntary private health insurance conversion program. While the Veteran told the Board that he was discharged early for a family hardship, evidence in the record shows that he was discharged for misconduct, albeit for minor disciplinary infractions. There is no other evidence in the record, except for his testimony, about his mother's health crisis that would have led to his early dismissal from service. Further, there is no indication in the record that the Veteran was ever in the Naval Reserve or was a recruiter. The Board points out that even assuming that the Veteran was a recruiter for one or three months during the summer of 1992, this volunteer or part-time or Reserve duty cannot count towards the requirement of 24 months of active service. Moreover, if the Veteran believes his DD Form 214 is in error he can request a correction of his service records. The Veteran has been out of service for more than two decades and there is no indication in the record that he ever tried to have his service records corrected regarding his time on active duty. The Board is unable to provide a legal remedy to the Veteran in this case. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Accordingly, since the Veteran did not satisfy the threshold minimum active duty service requirements at the time when he requested a nonservice-connected pension, and because he was not in receipt of service-connected benefits for any type of disorder when he was discharged or when he applied for benefits, the Veteran was not entitled to benefits when they were erroneously awarded to him and subsequently denied. While said benefits were originally awarded to the Veteran, that action was clearly erroneous, and restoration of those benefits would be clearly and unmistakably erroneous and not allowed by law. Hence, his claim for non-service-connected pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs