Citation Nr: 1510915	
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  13-11 675	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to nonservice-connected disability pension.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R.M.K., Counsel







INTRODUCTION

The Veteran had active duty service from July 1978 to August 1982. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania.  Jurisdiction was subsequently transferred to the RO in New York, New York.

The record before the Board includes the Veteran's paper claim folders and his electronic Virtual VA file.

In February 2014 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of this hearing is associated with Virtual VA.


FINDING OF FACT

The Veteran did not serve in the active military, naval, or air service during a period of war.


CONCLUSION OF LAW

The criteria for legal eligibility to nonservice-connected pension benefits have not been met.  38 U.S.C.A. § 1521; 38 C.F.R. § 3.3 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA) and implementing regulation ((38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2013)) impose obligations on VA in terms of its duty to notify and assist claimants.  Because the law, and not the evidence, is dispositive in this case, the VCAA is not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

The Veteran seeks nonservice-connected disability pension.  He essentially contends that he served during a period of war. 

Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability that is not the result of willful misconduct, provided that they have the requisite service.  38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b) (2013).  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).

VA's determination of whether a claimant's service meets the threshold statutory requirements usually is dependent upon service department records verifying the character of a claimant's service.  See 38 C.F.R. § 3.203 (2013); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In testimony before the undersigned VLJ, the Veteran noted that he served during the Iran hostage crisis and that those periods should be considered periods of war. 

Whether a Veteran's service includes wartime service is a matter of law.  The term "period of war" is currently defined by statute.  The Vietnam era and the Persian Gulf War are considered periods of war.  38 U.S.C.A. § 101(11).  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); 38 C.F.R. § 3.2(f).  The Persian Gulf War is defined as the period beginning August 2, 1990, and continuing to the present.  38 U.S.C.A. § 101(33); 38 C.F.R. § 3.2(i) (2013). 

As the Veteran's service is after the established period  of the Vietnam War, and prior to that of the Persian Gulf War, his service from July 1978 to August 1982 does not qualify as service during a period of war as defined by applicable regulation. 

In sum, the Veteran's service does not meet the threshold criteria for basic eligibility for nonservice-connected pension benefits.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. Although the Board sympathizes with the Veteran, and understands his argument regarding the Iran hostage crisis, it is bound by the law and cannot grant benefits based on equity.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) ((citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).

Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

Entitlement to nonservice-connected disability pension is denied.



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs