Citation Nr: 1751955 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-15 347A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to basic eligibility for nonservice-connected disability pension benefits. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to January 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Board remanded the claim for a Travel Board hearing. In October 2011, the Veteran, his spouse, and his daughter testified before a Veterans Law Judge who is no longer employed at the Board. In March 2012, the Board remanded the claim for further development. Because the Veteran had a hearing with a Veterans Law Judge who is no longer at the Board, he was afforded the opportunity for another Board hearing. 38 C.F.R. § 20.707 (2017). In September 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the electronic record. The Board finds there has been substantial compliance with its February 2011 and March 2012 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDING OF FACT The evidence is in equipoise as to whether the Veteran served in the Republic of Vietnam from May 1962 to June 1962 while on temporary duty with the121st Evacuation Hospital in South Korea. CONCLUSION OF LAW Entitlement to basic eligibility for nonservice-connected disability pension benefits is granted. 38 U.S.C. §§ 101, 1521 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Governing law and regulations Under VA regulations, the payment of nonservice-connected pension benefits is provided to veterans who are permanently and totally disabled from a nonservice-connected disability that is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a). A veteran meets the service requirements of that section if he served in active military, naval or air service under one of the following conditions: (1) for ninety 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 ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). The Vietnam era is a period of war. 38 U.S.C. § 101(11). The term "Vietnam era" means the following: (1) 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, and (2) the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f). Analysis From May 1962 to June 1962, the Veteran was on temporary duty with the 121st Evacuation Hospital in South Korea. The Veteran argues that during that time period he went to the Republic of Vietnam to assist with the return of dead soldiers. The Veteran's service personnel records do not describe the nature of his temporary duty from May 1962 to June 1962. The service personnel records do contain some travel information. While his service personnel records show his itinerary for his deployment to Asia in 1961, these records do not show that his itinerary for his return trip to the United States in 1962. Since his service personnel records contain incomplete travel information, these records do not unequivocally show that the Veteran did not travel to the Republic of Vietnam in 1962. Unit records for the 121st Evacuation Hospital for 1962 could not be obtained. The morning reports for 121st Evacuation Hospital merely show that the Veteran was assigned temporary duty. The morning reports do not reveal whether the Veteran was in the Republic of Vietnam or in South Korea during his temporary duty. In light of the limited evidence that is probative on whether the Veteran was in the Republic of Vietnam as he claims, the Board finds that the evidence is in equipoise as to whether the Veteran served in the Republic of Vietnam while on temporary duty from May 1962 to June 1962. Entitlement to basic eligibility for nonservice-connected disability pension benefits is established. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.2, 3.3. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to basic eligibility for nonservice-connected disability pension benefits is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs