Citation Nr: 1400474 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 13-05 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Basic eligibility for nonservice-connected pension benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The appellant served with the United States Naval Reserve from August 1952 to August 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In October 2013, the appellant testified at the RO during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board has reviewed the Veteran's entire claims file, to include documents of record that have been included in his virtual VA folder. Relevant documentary evidence has not been added to the claims file since the supplemental statement of the case (SSOC) dated in July 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2013). 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). FINDINGS OF FACT 1. The appellant, who served in the United States Naval Reserve from August 1952 to August 1960, did not have at least 90 days of active service during a period of war as defined for VA benefits purposes. 2. The appellant is not service-connected for a disability, and does not claim to have a disability that is related to service. CONCLUSION OF LAW The criteria for establishing basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1501(4), 1521, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.2, 3.3(a)(3), 3.102, 3.159, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in greater detail below, the appellant's service personnel records do not reflect that he had active service of at least 90 days during a period of war, or that he was discharged for a medical disorder which is now service connected, thus precluding a nonservice-connected pension as a matter of law. As such, VA's notification and assistance requirements are not applicable to this claim. See 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice is not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). Nonservice-connected Pension The appellant contends that he is entitled to nonservice-connected pension benefits based on his 8 years of service in the U.S. Naval Reserve. VA will pay a pension to each veteran of a period of war who is permanently and totally disabled from non-service-connected disability not the result of his own misconduct. 38 U.S.C.A. §§ 1502, 1521 (West 2002). In pertinent part, eligibility for a pension may be established by a veteran having active duty service of either (1) 90 days or more during a period of war; (2) a period of 90 consecutive days or more when such period began or ended during a period of war; (3) or an aggregate of 90 days or more in two or more separate periods of service during more than one war; or (4) served in active military service and was discharged or released from such wartime service by reason of disability adjudged service-connected, or at time of discharge had a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2013). "Periods of war" are defined by VA regulations, which include the time of the Korean conflict between June 1950 and January 1955. The appellant served from August 1952 to August 1960, or during the Korean conflict. 38 U.S.C.A. § 101(9). Eligibility for VA benefits is governed by statutory and regulatory provisions that define an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). The term "active duty" means full time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C.A. § 101 (21)(A). Thus, eligibility for VA pension benefits requires an initial showing that the claimant is a veteran who served on active duty for at least 90 days during a period of war. See 38 U.S.C.A. § 1521; Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). Nonservice-connected pension benefits may be awarded if the claimant served less than 90 days during a period of war and was discharged or released from service for a service-connected disability. Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In this matter, the threshold issues are whether the appellant has the requisite period of wartime active service, and/or whether the appellant has a service-connected disorder. Based on a review of the record, it is clear that the appellant is not service-connected for a disorder, and does not claim to have a disorder that should be service-connected. During his Board hearing, he testified clearly that he was not injured during his reserve service. It is also clear that, though the appellant served during a period of war, his reserve service cannot be characterized as active service under the relevant statutes and regulations. Rather, the record demonstrates that the appellant's entire period of service between August 1952 and August 1960 was that of a reservist with periods of INACDUTRA and ACDUTRA. Service department records in the claims file clearly indicate that the appellant served as a reservist without any period of active duty as defined by the relevant statutes and regulations. There is no period of active service documented in the record - no evidence indicates that he had 90 days of qualifying service. During his October 2013 Board hearing, the appellant agreed with the summary of his service as noted in the service department records. The Board is obligated to accept the service department's verified dates of service as accurate. VA does not have the authority to alter the findings of the service department. See Duro v. Derwinski, supra. While the Board is sympathetic to the fact that the appellant believed when he enlisted in the Naval Reserve that he would be eligible for veterans benefits, the Board has no authority to grant equitable relief. Furthermore, while the Veteran believes that being subject to the Uniform Code of Military Justice qualifies him for Veterans benefits, the law is not so written. The Board finds that the appellant did not serve on active duty for 90 days, and therefore is ineligible for consideration for a nonservice-connected pension. ORDER Basic eligibility for nonservice-connected pension benefits is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs