Citation Nr: 1753218	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO.  14-19 920	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to nonservice-connected pension benefits.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Chad Johnson, Associate Counsel



INTRODUCTION

The Veteran had active service from January 1961 to January 1964.  

This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  The Board notes that entitlement to nonservice-connected pension benefits was previously denied in a final January 1999 decision.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(a), 20.302, 20.1103 (2016).  However, as additional relevant service records were subsequently associated with the claims file, the Board has reconsidered the claim on the merits.  38 C.F.R. § 3.156(c) (2016).  

The Veteran's April 2014 VA Form 9 substantive appeal requested a videoconference hearing before the Board; however, he subsequently failed to appear for a scheduled hearing in June 2017 and his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(c)-(d) (2016).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's only period of active service was from January 1961 to January 1964 and he did not serve in the Republic of Vietnam.  


CONCLUSION OF LAW

The criteria for nonservice-connected pension benefits have not been met.  38 U.S.C.A. §§ 1501, 1521 (West 2014); 38 C.F.R. §§ 3.2, 3.3, 3.102 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process  

Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

II.  Nonservice-connected Pension  

Nonservice-connected pension benefits are available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of his own willful misconduct.  38 U.S.C.A. § 1521(a) (West 2014); 38 C.F.R. § 3.342(a) (2016).  

A veteran meets the service requirements of this section if the veteran served in active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from that service for a service-connected disability; (3) for a period of 90 consecutive days or more and the 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).  

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.  38 C.F.R. § 3.203 (2016); Duro v. Derwinski, 2 Vet. App. 530 (1992).  

The period of war at issue in the present case involves the Vietnam era, which is defined as follows:  "The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period.  The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases."  38 C.F.R. § 3.2(f).  

The Veteran's personnel records, specifically his DD Form 214, confirms that he served on active duty from January 1961 to January 1964; however, there is no probative evidence in the Veteran's claims file, including his service treatment records, to substantiate any service in the Republic of Vietnam.  Moreover, the Veteran has not alleged that he had active service in Vietnam at any time.  Because the Veteran did not have any in-country service in Vietnam, he must have served between August 5, 1964 and May 7, 1975 to be eligible for nonservice-connected pension benefits.  Id.  Significantly, however, he does not meet this requirement.  Accordingly, the Board finds that the Veteran does not have the requisite wartime service to warrant eligibility for nonservice-connected pension benefits.  

The Board is sympathetic to the Veteran's claim and appreciative of his service to this country at a time that it was needed, but the basic eligibility requirements for nonservice-connected pension benefits have not been met.  As such, the Veteran's appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  


ORDER

Nonservice-connected pension benefits are denied.  




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs