Citation Nr: 1455072 Decision Date: 12/15/14 Archive Date: 12/24/14 DOCKET NO. 12-26 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to non-service connected disability pension. (The issue of entitlement to annual VA clothing allowances is addressed in a separate Board decision under docket number 12-27 443A). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from February 8, 1977, to April 20, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction over the claim was subsequently transferred to the Regional Office (RO) in Waco, Texas. The Veteran provided testimony before the undersigned during a June 2014 videoconference hearing; a transcript of the hearing is associated with the "Virtual VA" electronic claims file. The Board notes that the paper claims file, Virtual VA, and Veterans Benefits Management System (VBMS) paperless claims processing systems were reviewed in order to ensure thorough analysis of the evidence of record. The issues of entitlement to service connection for bilateral knee disability and back disability as secondary to service-connected bilateral pes planus with degenerative changes and deformity were raised by the record during the aforementioned June 2014 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's period of military service from February 8, 1977, to April 20, 1978, does not meet the mandatory requirement of military service during a wartime period. 2. The Veteran was not discharged by reason of an adjudged service-connected disability. CONCLUSION OF LAW The legal criteria for basic eligibility for non-service connected disability pension benefits are not met. 38 U.S.C.A. §§ 101(2), 107, 1521, 7104 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has denied the present claim on the basis that the Veteran does not meet the mandatory requirement of military service during a wartime period and because he lacks the requisite adjudged service-connected disability. The Board has determined that there is no legal entitlement to the claimed benefit as a matter of law. As the Board has denied the claim as a matter of law, the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 are inapplicable because there is no reasonable possibility that any notice or assistance could aid in substantiating the claim. See e.g., Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001); Mason v. Principi, 16 Vet. App. 129, 132 (2002). Analysis Non-service-connected pension benefits are payable to a veteran of a period of war who meets the service requirements prescribed in 38 U.S.C.A. § 1521(j). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a). Eligibility for VA benefits is governed by statutory and regulatory law that defines 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" 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). The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501(4) (West 2014); 38 C.F.R. § 3.2 (2013). For VA pension purposes, the periods of war are defined at 38 C.F.R. § 3.2. Specifically, according to 38 C.F.R. § 3.2, the Korean conflict is defined as the period beginning on June 27, 1950, through January 31, 1955. The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. 38 U.S.C.A. § 101(29) (A); 38 C.F.R. § 3.2(f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C.A. § 101(29) (B), (33); 38 C.F.R. § 3.2(f), (i). The Veteran's Department of Defense Form 214 certifies that he had active service from February 8, 1977, to April 20, 1978, and that he received an honorable discharge. In summary, the Veteran does not meet the mandatory requirement of military service during a wartime period, and he is not shown to have been discharged as a result of a disability adjudicated to be related to his active service. For these reasons, the Board finds that the Veteran does not meet the basic eligibility requirements for non-service-connected pension benefits. 38 U.S.C.A. § 1521(a), (j); 38 C.F.R. § 3.3. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the United States Court of Appeals for Veterans Claims (the Court) held that where the law and not the evidence is dispositive of an appellant's claim, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. In this case, the Veteran's claim for non-service-connected pension benefits lacks legal entitlement due to nonqualifying service. The governing regulations on basic eligibility to receive non-service-connected pension benefits are binding. See 38 U.S.C.A. 7104(c). Accordingly, entitlement to non-service-connected pension benefits is not warranted, and the Veteran's claim must be denied. ORDER Entitlement to non-service connected disability pension benefits is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs