Citation Nr: 1340848	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  13-02 057	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota

THE ISSUE

Entitlement to nonservice-connected pension.


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

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).

The Veteran served on active duty from July 1958 to January 1961.

This appeal to the Board of Veterans' Appeals (Board) arose from an October 2012 decision by the Pension Management Center (PMC) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota, that denied the benefit sought on appeal.

FINDING OF FACT

The Veteran did not serve in the Republic of Vietnam or otherwise serve in a period of war.


CONCLUSION OF LAW

The criteria for entitlement to a nonservice-connected pension have not been met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.16, 3.203 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will notice and assistance to aid a claimant in substantiating a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  When the law, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).

The outcome of this case is controlled by the dates of the Veteran's service.  Those dates are not in dispute and the law is controlling.  Further consideration of the VCAA is not required.  Id.

Applicable Legal Requirements for Non-service-Connected Pension

Pension is provided for a veteran with honorable active military service of 90 days or more during a period of war, or discharge or release from service during a period of war, as defined by VA regulations, for nonservice-connected disability or age; meets certain annual income limitation requirements; and, is 65 years or age or older; o, is permanently and totally disabled from nonservice-connected disability not the result of that veteran's willful misconduct.  38 U.S.C.A. § 1521(a), (j); 38 C.F.R. § 3.3(a)(3).

The Veteran's service personnel records reflect he had active service from July 28, 1958 to January 15, 1961.  The Veteran does not dispute these dates.  VA's defined periods of war are listed in 38 C.F.R. § 3.2. The Vietnam wartime period is considered to have begun on February 28, 1961 and ended on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period.  (Emphasis added).  In all other cases, the Vietnam period of war is from August 5, 1964, to May 7, 1975, inclusive.  The constitutionality of this eligibility requirement has been upheld.  Fisher v. West, 11 Vet. App. 121, 123-24 (1998).  There is no evidence the Veteran had any service in Vietnam.  Because his service ended before February 28, 1961, he cannot be found to have had Vietnam era service as defined by regulation, regardless of whether he had been in Vietnam.  

In his notice of disagreement, the Veteran pointed to two bases for finding he had Vietnam era service: 1) a Wikipedia entry that notes the various discussions/debates on the actual start of the Vietnam War, and reflects that the Department of Defense settled on a date in November 1955; and 2) Chapter 3 of a VA publication on pensions mentions no requirement of physical presence in Vietnam prior to August 5, 1964, to qualify due to service during the Vietnam War.

The Board is bound by the VA regulation that defines Vietnam era service.  38 U.S.C.A. § 7104(c) (West 2002).  The Board cannot choose to disregard the dates specified by regulation in favor of the dates discussed in a Wikipedia entry.  VA regulations are the controlling authority.  Second, the excerpt from the VA publication submitted by the Veteran is not shown to have the authority of a regulation and in any event, does not cite the controlling dates for any period of war that might qualify a veteran for a nonservice-connected pension.  Thus, the publication does not contradict the regulation or provide authority for finding that the Veteran served in a period of war.

As set forth above, the applicable period of war for a veteran who did not actually serve in Vietnam is, August 5, 1964, to May 7, 1975.  That period commenced over three years after the Veteran's discharge from active service, and one month after the expiration of his Army Reserve obligation, July 27, 1964.  

In light of the fact the evidence of record shows the Veteran's period of service occurred during a peacetime, as defined by the applicable regulation, the Board must find the criteria for eligibility for nonservice-connected pension have not been met, and the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to nonservice-connected pension is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs