Citation Nr: 1453071 Decision Date: 12/02/14 Archive Date: 12/10/14 DOCKET NO. 11-21 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bronx, New York THE ISSUE Eligibility for medical care at a VA facility. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from February to June 1979. No active duty is shown. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision of the Department of Veterans Affairs Medical Center (VAMC) in Bronx, New York. In May 2012, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. In April 2014, the Board remanded the appeal to verify the specific dates of any active duty and any ACDUTRA period other than from February to June 1979, and, thereafter, to readjudicate the appeal. The case now returns to the Board after satisfactory completion of the ordered development; therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. The appellant did not serve on active duty. 2. The appellant has not been granted service connection for any disability resulting from his service in the U.S. Army Reserve. CONCLUSION OF LAW The appellant does not meet the criteria for eligibility for medical care at a VA facility. 38 U.S.C.A. § 101(22), (23) (West 2002); 38 C.F.R. § 3.6(c), (d) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks eligibility for VA medical care on the basis that a military recruiter told him that he would receive life-long medical benefits when he initially enlisted in 1979, and he received medical care through VA for a number of years before being notified that he was not eligible for VA health care. After consideration of the May 2012 Board hearing testimony and review of the record, the appellant is no longer eligible for medical care by or through VA because he does not have status as a veteran. A veteran is 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). Active service includes: 1) active duty; 2) any period of ACDUTRA during which a person is disabled or dies from a disease or injury incurred or aggravated in line of duty; or, 3) any period of inactive duty training (INACDUTRA) during which a person is disabled or dies from an injury incurred or aggravated in line of duty, or is disabled or dies from certain diseases (myocardial infarction, cardiac arrest, or cerebrovascular accident) that occurred during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2014). The term ACDUTRA means full-time duty in the Armed Forces performed by members of the Reserve Components or National Guard for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA means duty in the Reserve or National Guard other than full-time duty, special additional duty, or training other than active duty training. See 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). In this case, the evidence shows that the appellant only served in the Army Reserve. He did not serve on active duty. Thus, the only avenue through which he could achieve status as a veteran is by establishing that a particular disease or injury was the result of his Reserve service; however, service connection is not in effect for any disability. A March 2010 rating decision denying service connection for hemorrhoids is final, and the appellant does not allege that any injury or any disease was the result of his Reserve service. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). Because the appellant does not have the requisite active duty and has not sustained disability resulting from his service in the Army Reserve, he cannot meet the criteria to be considered a veteran. As such, he is not eligible for VA health care. Although he received VA care for many years, it was based on inaccurate information that he had active duty from February to June 1979. Because the law is dispositive of the issue, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered VA's enhanced duties to notify and assist claimants in substantiating their claims for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2014). However, Congress, in enacting the VCAA, 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) (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). Where the law, and not the evidence, is dispositive of a claim, such as in this case, the VCAA is not applicable. 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). Notwithstanding the above, the Board previously remanded the appeal in an effort to obtain verification for any active duty service periods or any periods of ACDUTRA (i.e., other than from February to June 1979), particularly for any periods prior to February 1979, for the appellant. Pursuant to the Board's remand order, the VA enrollment coordinator at the VAMC contacted the National Personnel Records Center (NPRC) and asked for verification of the appellant's service dates. The NPRC responded that he had ACDUTRA service from February to June 1979, and no other active duty was performed. The DD Form 214 shows that he had only inactive service prior to February 1979, and had no active service during that period, which is consistent with the information provided by the NPRC. Thus, the appellant does not have status as a veteran in order to be eligible for VA medical care. Accordingly, no further assistance is needed in the development of the appeal, which is denied as a matter of law. ORDER Eligibility for medical care at a VA facility is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs