Citation Nr: 1335235	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  12-13 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to nonservice-connected pension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel


INTRODUCTION

The appellant served on active duty from July 19, 1974 to September 4, 1974. He also reports prior unverified active service from May 18 or 19, 1974 to July 18, 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  The appellant testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2012, and a transcript of that Board hearing is of record. 

In September 2012, the Board remanded the appeal to the RO to provide the appellant an opportunity to provide any documentary evidence that supports his contention that his active service began on May 18 or 19, 1974; ask the National Personnel Records Center (NPRC) to verify whether his active service began on May 18 or 19, or another date prior to July 19, 1974; and obtain his personnel records.  In November 2012, before the RO sent the appellant a letter in February 2013 asking him for the documentary evidence, his representative submitted a statement indicating that he does not have any additional evidence regarding earlier entry into service.  Although the appellant did not reply to the February 2013 letter, the Board finds that there has been substantial compliance with that remand directive.  See Dyment v. West, 13 Vet. App. 141 (1999).  The RO also obtained verification of his service dates and obtained his personnel records.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The appellant did not have active service for 90 days or more during a period of war, and he was not discharged or released from such service as a result of a service-connected disability.
CONCLUSION OF LAW

The appellant does not meet the basic eligibility requirements for nonservice-connected pension.  38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013).  The Board observes, however, that where the law, and not the evidence, is dispositive in a claim, those duties to notify and assist are not applicable.  See Mason v. Principi, 16 Vet. App. 129 (2002).  See also Valiao v. Principi, 17 Vet. App. 229 (2003); Smith v. Gober, 14 Vet. App. 227 (2000); Sabonis v. Brown, 6 Vet. App. 426 (1994).  

Analysis

A pension is available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of his own willful misconduct.  38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. § 3.342(a) (2013). 

A veteran meets the service requirements of this section if such veteran 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) (West 2002).

VA's regulations further provide that active military, naval, and air service includes active duty, any period of active duty for training 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 during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 C.F.R. § 3.6 (2013). 

The term "period of war" is defined by statute.  The Vietnam era began August 5, 1964 and ended May 7, 1975.  38 U.S.C.A. § 101(11) (West 2002); 38 C.F.R. § 3.2(f)(i) (2013).

VA's determination of whether a claimant's service meets the threshold statutory requirements usually is dependent upon service department records verifying the character of a claimant's service.  See 38 C.F.R. § 3.203 (2013); Duro v. Derwinski, 2 Vet. App. 530 (1992).  A claim for nonservice-connected pension by a claimant whose service department records fail to show threshold eligibility lacks legal merit or legal entitlement and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

In this case, the claims file contains certification that the appellant served on active duty from July 19, 1974 to September 4, 1974, for a period of 48 days.  Although he asserts that his active service began on May 18 or 19, 1974, he has not provided any documentary evidence to support that assertion.  The personnel records obtained on remand confirm that his active service began on July 19, 1974.  That entry date is also supported by other evidence of record, including a June 25, 1974, entrance examination, a 1974 claim for benefits on which he listed his entry date as July 19 and a 1975 statement from a classmate indicating that he was in school until June 1974.  Therefore, he is not eligible for pension based on his service.  38 U.S.C.A. § 1521(j) (West 2002).  

The Board also notes that the appellant was discharged from service due to a left hip disability that existed prior to service.  However, a claim for service connection for a left hip disability has been repeatedly denied, most recently in a May 2013 rating decision.  Thus, the appellant was not discharged or released for a service-connected disability.  

In summary, the evidence simply does not show that the appellant meets the threshold requirements necessary to establish eligibility for nonservice-connected pension benefits.  As the law is dispositive in the claim, it must be denied for lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

To the extent that the appellant may be asserting that equity warrants the grant of nonservice-connected pension benefits, matters of equitable relief are only within the discretion of the Secretary of VA; the Board does not have the authority to award such relief.  See 38 U.S.C.A. § 503 (West 2002); Darrow v. Derwinski, 2 Vet. App. 303 (1992).


ORDER

Entitlement to nonservice-connected pension benefits is denied.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs