Citation Nr: 1417153 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 10-25 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to VA benefits, to include death pension benefits. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant claims to be the surviving spouse of L.H., who has no verified service in the United States Armed Forces. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT L.H. did not have service which satisfies the requisite service for the appellant's basic eligibility for VA death benefits. CONCLUSION OF LAW The legal criteria for basic eligibility for VA benefits, including death pension benefits, are not met. 38 U.S.C.A. §§ 1521, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Similarly the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003); Livesay v. Principi, 15 Vet. App. 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). As explained below, L.H. fails to meet the definition of a Veteran, of a period of war or otherwise, to qualify the appellant for VA benefits, including death pension, assuming for the sake of argument that she is his surviving spouse. The facts as they stand have not been disputed. Therefore, further development of the factual evidence by VA would not substantiate the appellant's claim. See 38 C.F.R. § 3.159(d). Because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.); see also VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004) (the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, no further action is required pursuant to the VCAA in connection with claim. Nevertheless, the Board notes that the appellant has been adequately notified of the requirements for her claim through May and December 2006 letters, and that VA has adequately assisted her with it, including by attempting to verify active service for L.H. in February 2007. The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. The Secretary shall pay pension for non-service-connected disability or death to the surviving spouse of each Veteran of a period of war who met the service requirements prescribed in section 1521(j) of title 38, U.S. Code, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. 38 U.S.C.A. § 1541. In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the individual in respect to whom pension is claimed be a Veteran who had active military, naval, or air service. See 38 U.S.C.A. §§ 101(2), (24), 1521(a),(j); 38 C.F.R. §§ 3.1, 3.6. The term "Veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a)(b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Wartime periods are found at 38 C.F.R. § 3.2. In support of her claim, the appellant was requested to provide but has not submitted any dates of service during which L.H. allegedly served, or any other information which would be helpful in establishing that L.H. was a Veteran, other than his name and Social Security number. His February 1989 death certificate reports that he had no service in the armed forces of the United States. In February 2007, the National Personnel Records Center used L.H.'s Social Security number and name as provided by the appellant in April 2006 in an attempt to verify any dates of service for L.H. It conducted extensive searches of every records source and alternate records source at its facility, and was unable to locate any information that would help it verify that L.H. served in the armed forces of the United States or was a Veteran. The service department's determination is binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App.530, 532 (1992). Since there is no evidence from the service department that L.H. had service in the armed forces of the United States, and was a Veteran, the Board finds that the appellant is not eligible for VA death benefits, including death pension benefits, as his purported surviving spouse. The appellant has not submitted any information different from that provided to and used by the service department in its attempt to verify that L.H. had service in the armed forces of the United States and was a Veteran. In addition, the Board notes that the official documents do not indicate, and the appellant has not contended, that L.H. had any service that would render her eligible for VA benefits, including death pension benefits. See Sarmiento v. Brown, 7 Vet. App. 80 (1994. In this case, the law is dispositive, and the appellant's basic eligibility for VA death benefits is precluded based upon the lack of a showing of any qualifying service by L.H. Therefore, eligibility for VA death benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). (CONTINUED ON NEXT PAGE) ORDER Eligibility for VA benefits, to include death pension benefits, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs