Citation Nr: 1751526	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  17-22 211A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Home Loan Eligibility Center in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a certificate of eligibility for home loan benefits.


ATTORNEY FOR THE BOARD

L. Leifert, Associate Counsel


INTRODUCTION

The Appellant had service in the Army National Guard from August 1964 to March 1966, with a period of Active Duty for Training (ACDUTRA) from November 1964 to January 1965.  He served in the United States Naval Reserves from February 1966 to August 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 decision by the Department of Veterans Affairs (VA) Home Loan Eligibility Center in Winston-Salem, North Carolina, which denied home loan benefits.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Appellant had a period of ACDUTRA of four months and 20 days, during which time he was not disabled, and did not die from, a disease or injury incurred or aggravated in line of duty.

2.  The Appellant served in the Army National Guard from August 1964 to March 1966, and received a "General" discharge. 

3.  The Appellant served in the United States Army Reserve from February 1966 to August 1970, and received an honorable discharge, but was not discharged because of a service-connected disability.


CONCLUSION OF LAW

The legal criteria for VA home loan guaranty benefits are not met.  38 U.S.C.A. §§ 3701, 3702, 5303A (West 2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014) and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  As will be discussed in further detail below, the Board finds that under the facts of the present case, the law is dispositive of the issue.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law) aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  VA also has no further duty to assist the Appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001); cf. Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error").  Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion.

A certificate of eligibility for loan guaranty benefits is granted only to "veterans" who satisfy the basic entitlement criteria outlined in 38 U.S.C.A. § 3702.  Section 101 of Title 38, U.S. Code, states that for the purpose of "title [38 USCS §§ 101 et seq.] . . . '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."  In this regard, the Board notes that "active military, naval, or air service" includes "active duty," defined as, among other things, "full-time duty in the Armed Forces, other than active duty for training [(ACDUTRA)]."  38 U.S.C.A. § 101(21)(A) (West 2014).  Active military service also includes "any period of [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training [(INACDUTRA)] during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C.A. § 101(24) (West 2014); 38 C.F.R. § 3.6(a) (2017).  The Board notes that for purposes of benefits afforded under Chapter 37 of Title 38, U.S. Code, the term "veteran" is broadened to include certain spouses and surviving spouses of veterans, individuals serving on active duty, and certain members or prior members of the Selected Reserve.

In the instant case, the Appellant had ACDUTRA from November 13, 1964, to January 22, 1965.  However, he was not disabled or died from a disease or injury incurred or aggravated in line of duty.  As such, this period of service is not "active military service" and the Appellant is not a "veteran" as define under 38 U.S.C.A. § 101(24).

However, 38 U.S.C.A. § 3701(b)(5) provides that the term "veteran" for purposes of eligibility for Chapter 37 benefits 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, was placed on the retired list, was transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or continues serving in the Selected Reserve, or who was discharged or released from the Selected Reserve before completing six years of service because of a service-connected disability.  38 U.S.C.A. § 3701(b)(5)(A).  The term "Selected Reserve" means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces.  38 U.S.C.A. § 3701(b)(5)(B). 

As noted above, the Appellant served in the Army National Guard from August 4, 1964, to March 9, 1966, and in the United States Naval Reserves from February 7, 1966, to August 2, 1970.  However, he was discharged from the Army National Guard under "General" conditions; therefore, since his discharge was not "honorable," his service in the National Guard cannot count toward the required six years of service.  In addition, while his discharge from the United States Naval Reserve was "honorable," he only served for a period of four years, three months, and 27 days, which does not provide the required six years of Select Reserve component service.

Thus, because the Appellant completed less than six years in the Selected Reserve, his service does not qualify him for housing benefits unless it is shown that he was discharged because of a service-connected disability.  38 U.S.C.A. § 3701(b)(5)(A).  However, in this case, the Appellant is not service-connected for any disabilities. 

Because the Appellant does not meet any of the above qualifying criteria, he does not qualify for status as a "veteran" for eligibility to Chapter 37 benefits, he does not meet the basic entitlement requirements for VA housing loan benefits under Chapter 37 of Title 38, U.S. Code, and he is thus not eligible to receive a Certificate of Eligibility for Loan Guaranty Benefits.  Accordingly, the claim of entitlement to VA home loan guaranty benefits must be denied.


ORDER

Basic eligibility for VA home loan guaranty benefits is denied.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs