Citation Nr: 1502383 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 12-15 704 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Eligibility Center in Winston-Salem, North Carolina THE ISSUE Whether the Veteran is eligible to receive VA home loan benefits. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from February 2007 to January 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2012 decision of the VA Eligibility Center in Winston-Salem, North Carolina. As support for this claim, the Veteran testified at a videoconference hearing in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. A copy of the hearing transcript has been associated with the claims file, so is of record. The Veteran also submitted additional evidence during the hearing and waived his right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ), preferring instead that the Board do so in the first instance. 38 U.S.C.A. §20.1304 (2014). Aside from the physical portion of the claims file, the Board has reviewed the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) electronic folders (e-folders), and finds they do not however include any additional relevant documents. FINDINGS OF FACT 1. The Veteran served on active duty from February 1, 2007 to January 29, 2008, which is less than 24 continuous months. 2. There is no indication he was released from active duty prior to completing 24 months of continuous service owing to a recognizable exception to this 24-month minimum requirement for entitlement to loan guaranty eligibility. CONCLUSION OF LAW The criteria are not met for basic eligibility for VA home loan benefits. 38 U.S.C.A. §§ 3701, 3702, 5303A, 3702 (West 2002); 38 C.F.R. § 3.12 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014), provides, among other things, for notice and assistance to claimants under certain circumstances. However, the VCAA is inapplicable here since further assistance would not help the Veteran in substantiating this claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Moreover, Congress, in enacting the statute, 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) (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller)). When the law and not the evidence is dispositive of the claim, the VCAA is not applicable. See Mason, 16 Vet. App. at 132 (VCAA not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a federal statute that prohibited payment of interest on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). In this case there is no dispute as to the pertinent facts, and the law is dispositive of the claim. Hence, the duties to notify and assist imposed by the VCAA have no application. Beverly v. Nicholson, 19 Vet. App. 394 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. The Merits of this Claim Entitlement to a Certificate of Eligibility (COE) for loan guaranty benefits is dependent upon length of service. A veteran who initially enters service after September 7, 1980, must complete either 24 months of continuous active duty or the full period for which the veteran was called or ordered to active duty, whichever period was shorter. 38 U.S.C.A. § 5303A(b)(1). In this case, the Veteran served on active duty from February 1, 2007 to January 29, 2008, which he readily concedes is less than 24 continuous months. Therefore, he does not meet the basic eligibility requirements of 38 U.S.C.A. § 5303A(b)(1). Certain exceptions to the 24-month rule are discussed in 38 U.S.C.A. § 5303A(b), including instances in which a veteran was released from active duty prior to completion of the requisite time period due to having incurred or aggravated a disability in the line of duty; if discharge or release was for the convenience of the government; if discharge or release was due to a medical condition that preexisted service but was not service connected; or if discharge or release was due to a medical condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty. 38 U.S.C.A. § 5303A(3)(F). The Veteran's DD Form 214 indicates he received an honorable discharge. The authority and reason for discharge was under the provisions of Army Regulation (AR) 635-200, paragraphs five through eight, which is involuntary separation due to parenthood. The Separation Code was JDG, which is for parenthood, and parenthood was listed under the Narrative Reason for Separation. This reason does not fall under one of the enumerated exceptions mentioned above. The term "veteran" also includes an individual who is not otherwise eligible for housing benefits and who has completed a total service of at least six years in the Selected Reserve and following the completion of such service, was discharged from service with an honorable discharge. 38 U.S.C.A. § 3701(b)(5)(A). Here, though, there is no suggestion the Veteran alternatively served six years in the Selected Reserve. While testifying during his May 2013 videoconference hearing before the Board, the Veteran explained that, while he did not serve the minimum amount of time needed to be eligible for a VA home loan, there were extenuating circumstances so his situation should be considered an exception to the 24-month rule. He explained that, while in service, his wife became very sick and was unable to take care of their two-year-old child. As of result of this hardship, he had no choice but to be discharged from service. He further added that, if his wife had not gotten sick, he would have continued to serve his full term in service, which would have exceeded the 24-month requirement. See the Board hearing transcript. While the Board is mindful of his contentions and sympathizes with his situation, the fact of the matter is that even he does not dispute the fact that he had less than the required 24-months of continuous service. So he is primarily, instead, disputing the timing and reasons for his discharge. But VA does not have the ability to change the circumstances of his discharge or award a benefit for which he is ineligible. The Board simply does not have authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). Payments from the Federal Treasury (or here, specifically, a home loan) must be authorized by statute, so government employees may not make obligations that are beyond the scope authorized by statute. Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Malone v. Gober, 10 Vet. App. 539, 543 (1997)) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. 1341(a) ). As such, the law, not the evidence, is dispositive of the outcome of this appeal, so it must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim of entitlement to basic eligibility for VA home-loan benefits is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs