Citation Nr: 1630652	
Decision Date: 08/02/16    Archive Date: 08/11/16

DOCKET NO.  14-20 278A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to basic eligibility for VA nonservice-connected disability pension benefits, to include special monthly pension based on the need for aid and attendance. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the U.S. Army from December 1960 to April 1963. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) by a VA Regional Office (RO).

All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran served on active duty from December 1960 to April 1963; the Veteran did not serve in the Republic of Vietnam; and, the Veteran did not serve during a period of war.  
 
CONCLUSION OF LAW

The criteria for entitlement to basic eligibility for VA nonservice-connected disability pension benefits, to include special monthly pension based on the need for aid and attendance, have not been met.  38 U.S.C.A. §§ 101, 1501, 1521 (West 2015); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.351 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The pertinent facts are not in dispute, and the Veteran's claim is being denied solely due to lack of entitlement under the law, as discussed below.  Therefore, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001)).  

 The Veteran contends that he is entitled to VA nonservice-connected disability pension benefits, to include special monthly pension based on the need for aid and attendance, because he has nonservice-connected disabilities, such as residuals of heart attacks and strokes, that are disabling.  See June 2014 Veteran statement; August 2010 claim. 

Basic entitlement to nonservice-connected disability pension benefits is warranted if all three of the following requirements are met:  (1) The Veteran must have served in the active military, naval or air service for 90 days or more during a period of war; (2) The Veteran must be permanently and totally disabled from non-service-connected disability not due to his or her own willful misconduct; and (3) The Veteran must meet the income and net worth requirements found in 38 C.F.R. §§ 3.23 and 3.274.  38 U.S.C.A. §§ 1502, 1521(j).  

The specific dates encompassing the "periods of war" are defined by statute.  The Korean conflict period of war ended on January 31, 1955.  38 U.S.C.A. § 101(9); 38 C.F.R. § 3.2(e).  For a Veteran who served in the Republic of Vietnam, the Vietnam era period of war began on February 28, 1961 and ended on May 7, 1975.  38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f).  However, for a Veteran who did not serve in the Republic of Vietnam, the Vietnam era period of war began on August 5, 1964 and ended on May 7, 1975.  Id.  

The Veteran's DD-214 shows that he served on active duty from December 1960 to April 1963, and there is no indication in the record and no report by the Veteran that the Veteran served in the Republic of Vietnam.  Thus, the Veteran did not serve during a period of war, and basic entitlement to nonservice-connected disability pension benefits is not warranted.  It follows that entitlement to special monthly pension based on the need for aid and attendance is denied because special monthly pension is an increased amount of pension benefits that may be granted only if the Veteran is already entitled to basic eligibility to nonservice-connected disability pension benefits.  See generally 38 C.F.R. §§ 3.23, 3.351 (providing the rates of pension benefits, to include the potential increased rates for Veterans who are entitled to nonservice-connected disability pension benefits).  

The Board acknowledges the Veteran's contention in equity that because he is disabled due to his nonservice-connected disabilities, and because he receives disability benefits from the Social Security Administration, entitlement to nonservice-connected disability pension benefits is warranted.  However, the Board is bound by the law and is without authority to grant benefits on an equitable basis.  38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Because the Veteran did not serve during a period of war, entitlement to basic eligibility for VA nonservice-connected disability pension benefits, to include special monthly pension based on the need for aid and attendance, must be denied under the law.  


ORDER

Entitlement to basic eligibility for VA nonservice-connected disability pension benefits, to include special monthly pension based on the need for aid and attendance, is denied. 



____________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs