Citation Nr: 1800466	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  08-36 360	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to basic eligibility for nonservice-connected pension benefits.

(The issue of whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral foot disorder will be addressed separately.)


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran  



ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1955 to October 1957.  He also had subsequent service in the Merchant Marines from 1977 to 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision issued in by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

This matter was remanded in April 2012 and May 2017.

In April 2016, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board.  He was afforded a new hearing before the undersigned Veterans Law Judge in August 2017.  Transcripts of both hearings are of record.

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) (2014).


FINDINGS OF FACT

The Veteran does not have active duty service during a period of war for the purposes of nonservice-connected pension benefits. 





CONCLUSION OF LAW

The criteria for basic eligibility for nonservice-connected pension benefits have not been met.  38 U.S.C. §§ 101, 1521 (2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.7 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran argues that he is entitled to nonservice-connected pension based on his service in the Merchant Marines during the Persian Gulf War.  See August 2017 Hearing Transcript, pp. 11-16.  

Basic entitlement to nonservice-connected pension benefits is warranted if all three of the following requirements are met: (1) the veteran must have served in the active military, naval or air service for 90 days or more during a period of war; (2) the veteran must be permanently and totally disabled from non-service-connected disability not due to his or her own willful misconduct; and (3) the veteran must meet the income and net worth requirements found in 38 C.F.R. §§ 3.23 and 3.274 (2017).  38 U.S.C. §§ 1502, 1521(j) (2014).

A veteran is defined as 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. § 101(2) (2014); 38 C.F.R. § 3.1(d) (2017).  Service in the active military, naval, or air service includes service in the United States Armed Forces; however, service in the Armed Forces does not include service in the United States Merchant Marine.  See 38 U.S.C. § 101(10) (2014).  

Nevertheless, under Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (1977), service of United States Merchant Seamen who served on blockships in support of Operation Mulberry; or service of American Merchant Marines in oceangoing service during the period of armed conflict from December 7, 1941 to August 15, 1945, is considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs."  See 38 C.F.R. § 3.7(x)(14) and (15) (2017); Pacheco v. West, 12 Vet. App. 36, 37 (1998) (discussing laws and regulations regarding recognition of certain limited Merchant Marine service as active-duty service for purpose of VA benefits).

In this case, the Veteran does not have qualifying service to meet basic eligibility for nonservice-connected pension.  With regard to his period of active duty service from September 1955 to October 1957, the Korean conflict ended on January 31, 1955, and the Vietnam era did not begin until February 28, 1961.  38 U.S.C. § 101 (9), (29); 38 C.F.R. § 3.2 (e), (f).  Furthermore, insofar as the Veteran seeks to establish entitlement based on his service in the Merchant Marines, his service was after August 15, 1945; thus, his service does not meet the criteria set forth in Pub. L. 95-202.  38 C.F.R. § 3.7(x)(14) and (15).  As such, the Veteran does not meet the basic eligibility requirements for nonservice-connected pension benefits.

Because the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to basic eligibility for nonservice-connected pension benefits is denied as a matter of law.




____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs