Citation Nr: 1759993 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-31 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to non-service connected pension. REPRESENTATION Appellant represented by: Nancy L. Foti, Attorney ATTORNEY FOR THE BOARD J. Negron, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to October 1988 and from February 2006 to April 2006. The Veteran additionally had service in the Army National Guard, with periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He also had Naval Reserves service. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St, Petersburg, Florida. The claim was brought before the Board in July 2011 and was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in September 2012, the Court vacated the Board's decision and remanded the case to the Board for action. The claim was brought before the Board again in May 2013 and June 2016 and was remanded for further development. FINDING OF FACT The Veteran did not serve 90 days or more during a period of war. CONCLUSION OF LAW The Veteran's military service does not meet the threshold service eligibility requirements for VA non-service-connected pension benefits. 38 U.S.C. §§ 101, 5107 (2012); 38 C.F.R. §§ 3.1, 3.2(f), 3.3(a)(3) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Non Service-Connected Pension 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, which is not the result of willful misconduct, but only where the Veteran has the requisite active military service during a "wartime" period. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he or she 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). In computing the 90 days required above, active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a period of war may be added together to meet the requirement for length of service. 38 C.F.R. § 3.17. The qualifying periods of war are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, and the Persian Gulf War. 38 U.S.C. § 101; 38 C.F.R. § 3.3(a)(3). The Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a Veteran who served in the Republic of Vietnam during that period; and in all other cases, the period beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f). The Persian Gulf War is the period beginning on August 2, 1990, and ending on a date to be prescribed by Presidential proclamation or law. See 38 U.S.C. § 101(33); 38 C.F.R. § 3.2(i). Further, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21), (24); 38 C.F.R. § 3.6(a), (d). Active duty for training (ACDUTRA) includes full-time duty performed by Reservists for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA Factual Analysis The Veteran asserts that he is entitled to a nonservice connected pension as a result of his military service. He contends that he had activated duty during periods of war and therefore, should be evaluated for nonservice-connected benefits. The Veteran's DD-214 forms confirm he served on active duty from March 1988 to October 1988 and from February 2006 to April 2006. The Veteran further had Army National Guard service, which, as stated above, included active duty, ACDUTRA, and INACDUTRA periods. Here, the Veteran's service from March 1988 to October 1988 was not during any time of war. His active service from February 28, 2006 to April 28, 2006 was during a recognized time of war. Additionally, the Veteran's service-connected injury to his left finger during a period of INACDUTRA from October 9, 2009 to October 11, 2009, was also during a recognized time of war. In the Board's 2016 remand, the RO was instructed to contact the National Personnel Record Center (NPRC), and request verification of all periods of military service, including specific active duty service, to include the specific period from September 2009 to January 2010. Following the remand, the RO received all additional records available to the NPRC. These records showed the Veteran had additional active duty from September 02, 2005 to September 15, 2005; which, coincides with the Veteran's statements that he was called for active duty in 2005 for Hurricane Katrina. Unfortunately, the records did not show any other active duty service and his active service dates in 2005, 2006, and 2009 INACDUTRA service involving his injury, do not meet the requirement of at least 90 days of active duty service under 38 U.S.C. § 1521(j); 38 C.F.R. § 3.17. The Board recognizes that the Veteran contends that he was also called to duty between September 2009 and January 2010, however, the Veteran also reported in a July 2017 statement that his unit was activated to deploy to Kuwait, but, he did not go, because he was injured during his 2009 INACDUTRA training. Although the October 9, 2009 to October 11, 2009 period is counted towards the 90 days, none of the subsequent time is. The Board further acknowledges that the records provided by NPRC included the Army National Guard Retirement Points History, which, shows the amount of points the Veteran received in a year for "active duty." However, the points for "active duty" are for active service as defined and ACDUTRA service. The document does not separate what points are for which type of service. Further, the Veteran has only asserted two periods outside of his 1988 and 2006 service to have been on active service and those periods were his September 2005 activation for Hurricane Katrina and his September 2009 to January 2010 activation. The Board notes that the September 2005 dates were accounted for in his documents, and since the Veteran stated himself he did not go on his 2009 active service deployment, there was no qualifying active service for that period (outside of the INACDUTRA injury). Thus, after review of the record, the Board finds that the Veteran does not meet the criteria for basic eligibility for non-service connected pension because the Veteran did not have active duty service for at least 90 days during a period of war. See 38 U.S.C. § 1521; 38 C.F.R. § 3.3. Although grateful for the Veteran's honorable service, this appeal must be denied. ORDER Eligibility to non-service connected pension is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs