Citation Nr: 1338503 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-23 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office Loan Center in Atlanta, Georgia THE ISSUE Entitlement to a certificate of eligibility for VA home loan guaranty benefits. ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The appellant had service in the Army National Guard in Indiana from December 12, 1955 to December 11, 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 letter of determination by the Department of Veterans Affairs (VA) Regional Office (RO) Loan Center in Atlanta, Georgia. (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).) FINDINGS OF FACT The appellant served in the Army National Guard from December 12, 1955 to December 11, 1958, received an honorable discharge, and was not discharged because of a service-connected disability. He did not serve on active duty. CONCLUSION OF LAW The legal criteria for a certificate of eligibility for VA home loan guaranty benefits are not met. 38 U.S.C.A. §§ 3701, 3702 (West 2002 & Supp. 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002). Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable. Id (VCAA not applicable to a claim for non-service-connected pension when the claimant did not serve on active duty during a period of war, as required by law). The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Because the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to this appellant's claim. Nonetheless, the Board notes that the June 2012 Statement of the Case (SOC) included the laws and regulations pertaining to service requirements for a certificate of eligibility for home loan guaranty benefits. The appellant submitted at least one statement subsequent to receiving the SOC, and has not identified any additional pertinent evidence that should have been obtained. The Board concludes that no further notification or development of evidence is required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Analysis A certificate of eligibility for home loan guaranty benefits is granted only to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C.A. §§ 3701 and 3702. For purposes of these benefits, the term "veteran" is defined under 38 U.S.C.A. § 3701(b). In this case, the appellant did not have active duty service and does not meet the basic eligibility requirements under 38 U.S.C.A. § 5303A(b)(1) (2013). As pertinent to this case, the term "veteran" also includes an individual who is not otherwise eligible for housing benefits and who has completed a total of at least six years in the Selected Reserve, and, following the completion of such service, was discharged from service with an honorable discharge, was placed on the retired list, was transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or continues serving in the Selected Reserve, or who was discharged or released from the Selected Reserve before completing six years of service because of a service-connected disability. 38 U.S.C.A. § 3701(b)(5)(A). The term "Selected Reserve" means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces. 38 U.S.C.A. § 3701(b)(5)(B). The record reflects that, in the May 2012 letter of determination and June 2012 SOC, the appellant's request for a Certificate of Eligibility for Loan Guaranty Benefits was denied because he did not have the minimum six years of service required for eligibility to receive such a Certificate. The appellant's Report of Separation and Record of Service in the Army National Guard of Indiana, Form NGB-22, demonstrates that the appellant entered into Army National Guard service on December 12, 1955 and was discharged from service on December 11, 1958. The appellant's discharge was honorable and is not shown to have been due to a service-connected disability. The appellant's Retirement Credits Record, Form NGB-23, confirms that the appellant's service was completed in 1958. The appellant received credits for either ACDUTRA or inactive duty for training (INACDUTRA) for the years of 1956, 1957 and 1958. On appeal, and particularly in his notice of disagreement and substantive appeal, VA Form 9, the appellant argues that he should be considered a "veteran" for purposes of awarding VA home loan guaranty benefits because he was honorably discharged from the National Guard in 1958 due to being married. He specifically stated in his substantive appeal, VA Form 9, statement: I got married in November of 1958 and at the next monthly National Guard meeting, when it became known that I was married, I was informed by one of the officers that being a married man was not a good fit with the [Indiana National Guard (ING)]. At that time, I was in my 3rd year in college and was also working part time to help pay the tuition costs. The small amount of money I earned from being in the ING was helpful. Later in that meeting, I was asked if I would be willing to leave the ING and I agreed to do so and was subsequently transferred to the Inactive Army Reserve. I had never missed any monthly meetings, attended summer camps and other weekend camp trainings, and would have gladly served-out the terms of my original enlistment. However, it was obvious to me that I was no longer wanted in that unit. The appellant's statements in his May 2012 notice of disagreement were substantially similar to those noted in his June 2012 substantive appeal, VA Form 9; the Board notes that the appellant particularly stated in his notice of disagreement that he was informed in 1958 that the "Guard didn't want any married men." The appellant additionally submitted evidence of a marriage certificate, dated November [redacted], 1958, in order to corroborate his assertions. As noted above, the appellant served in the Army National Guard of Indiana from December 12, 1955 to December 11, 1958; those dates are confirmed by the service personnel records in the claims file, and the appellant does not dispute their accuracy. Furthermore, the appellant does not assert that he served more time than currently shown in those records. He additionally does not assert that he was discharged after only three years of service due to any service-connected disability, but rather because he got married and "the Guard didn't want any married men." Thus, even though the appellant's discharge from the Army National Guard in December 1958 was honorable, the undisputed facts in this case demonstrate that the appellant served only 3 years of reserve service. The law requires 6 years for eligibility for VA home loan guaranty benefits. While the Board is sympathetic to the appellant's statements that he should be eligible for VA home loan guaranty benefits because he was unfairly asked to resign due to his marital status, the fact remains that the appellant only had 3 years of reserve service. The Board is bound by the laws enacted by Congress, VA regulations, the instructions of the Secretary of VA, and the precedent opinions of the VA chief legal officer. See 38 U.S.C.A. § 7104(c) (West 2002). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Thus, the Board is without authority to grant benefits because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the law, not the evidence, is dispositive of the outcome of this case. As a matter of law, the appellant is not eligible for VA home loan guaranty benefits. Therefore, the Board must deny entitlement to a certificate of eligibility for VA home loan guaranty benefits for this appellant on the basis of the evidence of record. See 38 U.S.C.A. §§ 3701, 3702; see also Sabonis, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a certificate of eligibility for VA home loan guaranty benefits is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs