Citation Nr: 1339736 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-30 945A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Eligibility for nonservice-connected pension benefits. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from November 18, 1985, to May 17, 1990. The evidence also shows that she had a Reserve obligation terminating on June 5, 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND To establish basic eligibility for VA nonservice-connected pension benefits, a veteran must have served in the active military, naval, or air service for a period of 90 days or more during a period of war; during a period of war and be discharged or released from such service for a service-connected disability; for a period of 90 days or more and such period either began or ended during a period of war; or, for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. See 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a) (2013). The term "active military, naval, or air service" includes active duty, and "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." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2013); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). In the instant case, the Veteran's DD Form 214 shows that she served on active duty from November 18, 1985, to May 17, 1990. Based on these service dates, the Veteran would not be eligible for nonservice-connected pension benefits, as she did not serve during a period of war as defined by regulation. See 38 C.F.R. § 3.2 (2013) (defining the period of war for the Persian Gulf War as being from August 2, 1990, through date to be prescribed by Presidential proclamation or law). Notably, however, the Veteran's DD Form 214 also shows that she had a Reserve obligation terminating on June 5, 1993, and the Veteran's Virtual VA file contains a certificate of honorable discharge showing that she was discharged from the U.S. Navy on June 5, 1993. In her December 2011 notice of disagreement, the Veteran alleged that she performed active service as a Reservist. Despite this allegation, it does not appear as though the agency of original jurisdiction (AOJ) undertook any efforts to determine whether the Veteran performed any qualifying service during her Reserve obligation term. As the Veteran's Reserve obligation term covers a period of war, if she is found to have active service during that time, she would potentially be eligible for nonservice-connected pension benefits. Accordingly, the Board finds that the matter must be remanded for the AOJ to determine whether the Veteran performed active service as alleged during her Reserve obligation term. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ must send to the Veteran a letter notifying her of the information and evidence necessary to substantiate her claim for nonservice-connected pension in accordance with the Veterans Claims Assistance Act of 2000. 2. The AOJ must verify the Veteran's dates of service and determine whether during her Reserve obligation term she had any periods of active duty, active duty training, or inactive duty training, and, to the extent feasible, ascertain the dates for each such period of service. As part of that process, the AOJ should attempt to obtain a copy of any DD Forms 214 not already associated with the claims folder or other separation certificate, as well as the Veteran's personnel file. The appropriate agency(ies) must be contacted to obtain the records. All attempts to obtain this data, and any responses received, should be documented in the claims folder. 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to nonservice-connected pension benefits. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until she is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).