Citation Nr: 1634440 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 13-14 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the appellant may be considered a veteran for purposes of eligibility for Department of Veterans Affairs (VA) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is seeking recognition as a Veteran for purposes of eligibility for VA benefits. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 decision of the Roanoke, Regional Office (RO) of the Department of Veterans' Affairs (VA). On her May 2013 Form 9, the appellant requested a Board hearing. That hearing was scheduled for May 6, 2016. However, the appellant did not report to the hearing and has not communicated a desire to reschedule. FINDING OF FACT The Veteran is not shown to have served in the military or in the U.S. Public Health Service Commissioned Corp, either in active duty or reserve status. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of this claim, and therefore does not qualify for VA benefits based on this status. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Individual eligibility for VA benefits, other than survivor benefits, is based on statutory and regulatory provisions, which define the individual's legal status as a veteran of active military service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" means 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); 38 C.F.R. § 3.1(d). Such active service includes full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service. 38 C.F.R. § 3.6(b)(1). In this case, the appellant has asserted that her work for the U.S. Census Bureau from February 1, 1989 to April 30, 1989 was performed as service in the U.S. Public Health Service Commissioned Corps (USPHSCC). She also has noted additional USPHSCC service from March 2010 to August 2011 involving the Census Bureau. Notably, attempts have been made to verify that the appellant had actual service with the USPHSCC but the USPHS has indicated that a thorough search of their records reveals that the appellant had no service on active duty with the USPHSCC (See e.g. July 2013 letter from the Personnel Management Support Team, Division of Commissioned Corps Personnel and Readiness, Office of the Surgeon General, USPHS). The appellant has also contacted other repositories of records pertaining to uniformed services, including the National Personnel Records Center (NPRC) and the National Archives and Records Administration (NARA) but has not produced any documentation verifying that she had any service in the U.S. Public Health Service Commissioned Corps (USPHSCC) or any service in the military. Thus, the documentation of record indicates that she has not had any military or other service that qualifies her as a veteran under the controlling regulation. 38 C.F.R. § 3.6. In this regard, she has not alleged any service in any of the Armed Forces and as mentioned, the USPHS does not have any record of her serving in the USPHSCC. The appellant's representative has essentially asserted that the appellant may have served in a reserve capacity with the USPHSCC and that perhaps the USPHS search for documentation of her service would not have included a review of whether she served in a reserve component. However, even assuming that the USPHS did not specifically search for reserve service, the Board, based on a general review of the standards and function of the USPHSCC, finds the appellant's underlying report of service inaccurate. In this regard, she has indicated that her work for the U.S. Census Bureau from February 1989 to April 1989 constituted USPHSCC service but at that time she was still only 16 years-old (i.e she was born in December 1972) and had not yet graduated from high school. However, because the minimum age requirement for serving in USPHSCC is 18 years-old, the appellant would not have been eligible to serve in 1989. See 42 C.F.R. § 21.25. (Notably, the federal regulations applicable to USPHCC do not explicitly prohibit a "student" in the reserve component from being under 18; however, at minimum, these regulations require such a student to be pursuing an academic degree with a major in a profession utilized by the USPHCC. See 42 C.F.R. § 21.54. Consequently, even assuming that pursuit of a highly specialized high school degree could meet this "student specialization requirement", the appellant received a general, "advanced studies diploma", and not a high school degree involving a major in one of the USPHCC health care and administration related professions. See the appellant's resume, page 5, received in July 2014). Also, the appellant has indicated that she worked for the Census Bureau as an enumerator. This work generally involves locating and interviewing households and recording information about the residents). See e.g. http://www.census.gov/programs-surveys/specialcensus/employment.html). While this work is crucial to the Census effort, it is not consistent with the type of work that would be performed by USPHCC officers (i.e. work that tends to involve the delivery and administration of public health services). See e.g. 42 U.S.C.A. Chapter 6A, Subchapter II; 42 U.S.C.A. § 204. The appellant did report additional dates of USPHCC service from 2010 to 2011 and the evidence indicates that by that point in time she had had extensive experience in health records management, including certification as a Registered Health Information Technician (RHIT). However, she did not report that she actually completed any federal government work during this time frame; rather she simply indicated that she "reactivated her file" with the Census Bureau in December 2009 and would have been hired but the applicable enumerator, clerk and field representative positions she was eligible for were filled. Once again, these Census Bureau positions are not compatible with the type of work performed by USPHCC officers. Moreover, the evidence shows that the appellant did not get the opportunity to perform this work. Accordingly, overall review of the evidence establishes that although the appellant performed valuable work for the Census Bureau in 1989, she has inaccurately reported this work as involving active or reserve service in the USPHCC. Given this inaccuracy, VA has no duty to conduct any further search for records of this reported service. See 38 C.F.R. § 3.159(d). In making the finding that the appellant's reporting is inaccurate, the Board is not concluding that she intended to deceive VA; only that she has mistakenly classified her Census Bureau work as service in the USPHCC. The Board empathizes with the appellant's desire to obtain benefits to assist her with managing her disabilities. However, it is bound to follow the controlling law and regulations. Because the evidence indicates that the appellant did not serve in the Armed Forces or the USPHCC and did not have any other type of qualifying service, she cannot be classified as a Veteran. 38 C.F.R. § 3.6. Accordingly, as a matter of law, the Board must find that she is not eligible for VA benefits based on this status. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. III. Due Process Under the Veterans Claims Assistance Act (VCAA) VA generally has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the claimant was provided general VCAA notice in a September 2011 letter. She was informed of her and VA's general responsibilities in claims development, including the duty to obtain records. She was also specifically advised of the threshold evidence necessary to establish her claim (i.e. that she had actual service that would qualify her as a veteran) and was afforded additional time to submit such evidence. Additionally, as the appellant specifically reported service in the U.S. Public Health Commissioned Corps, the RO appropriately attempted to verify such service through contact with the U.S. Department of Health and Human Services (HHS). Accordingly, VA has met its duty to assist in regard to such verification. Further, this case hinges on whether the appellant has recognized service in the USPHSCC to be considered a "veteran," and the service department and USPHS have affirmatively found that she does not have any recognized service. Also, as explained above, the appellant's assertion of such service is not accurate. Thus, the legal outcome is clearly dictated by the existing law regardless of any further notice or assistance the appellant might receive and under these circumstances, VA does not have a duty to provide any additional assistance, including any further efforts to attempt to verify reported USPHSCC service. 38 C.F.R. § 3.159(d). The Board also notes that both the supplemental statement of the case and an initial and follow-up Board hearing notice letter were both returned to VA as undeliverable. As a result, VA properly attempted to reach the appellant by mail at potential alternate addresses (other than the address of record she had identified) and by phone. Additionally, VA conducted a specific search to determine whether the appellant's current mailing address could be identified. As there is no indication of any additional alternate address to send this documentation and as the appellant retains a duty to keep VA informed of her current mailing address, the Board finds that VA was not required to make any additional efforts to locate the appellant. Accordingly, VA's notice and assistance obligations are met and any error or noncompliance with the provisions of the VCAA is harmless. Accordingly, the Board will proceed to issue its decision. ORDER Eligibility for Department of Veterans Affairs (VA) benefits based on Veteran status is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs