Citation Nr: 1804859	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-05 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to Veteran status for purposes of establishing eligibility for VA compensation and pension benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel

INTRODUCTION

The appellant served in the U.S. Merchant Marines from July 23, 1989, to February 16, 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  A Notice of Disagreement was submitted in June 2013; a Statement of the Case was issued in December 2013; and a VA Form 9 was received in February 2014. 

The appellant testified before the undersigned Veterans Law Judge in August 2016; a transcript is of record. 


FINDING OF FACT

The appellant served in the U.S. Merchant Marines from July 23, 1989, to February 16, 1992.  


CONCLUSION OF LAW

The criteria for establishing Veteran status for the purpose of eligibility for VA compensation and/or pension benefits are not met. 38 U.S.C.A. § 101 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.7 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  However, the notification and assistance provisions are not applicable here, as the appellant's claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).

The evidence of record demonstrates that the appellant served in the U.S. Merchant Marines from July 23, 1989, to February 16, 1992.  

The appellant does not assert, and the evidence of record does not otherwise support finding that he had any other period(s) of military service.  In May 2012, the appellant submitted a claim of entitlement to service connection for various disabilities, primarily indicating that these disabilities were incurred during his period of service in the U.S. Merchant Marines.  This argument was again reiterated during his Board hearing. 

Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a Veteran of active military, naval, or air service. 38 U.S.C.A. § 101 (2), (24); 38 C.F.R. §§ 3.1 (d), 3.6.  Service in the active military, naval, or air service includes service in the United States Armed Forces. 38 U.S.C.A. § 101 (10) (Armed Forces defined as the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof).

Under Public Law No. 95-202, § 40, 91 Stat. 1433, 1449-50 (1977), service of American Merchant Marines in Oceangoing Service, as well as Civil Service crew members aboard U.S. Army Transport Service and Naval Transportation Service vessels, during the period 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 53 Fed. Reg. 2775 (1988); see also 38 C.F.R. § 3.7 (x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). 

The Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, 112 Stat. 3315, provides that Merchant Mariners who served after August 15, 1945, are eligible for certain VA benefits such as burial and interment benefits; however, the allowed benefits do not include VA compensation or pension benefits, which are the benefits the appellant is seeking. See M21-1MR, Part III, Subpart iii, Chapter 2, Section F, topic 36 (recognizing that Merchant Mariners served under the Army Transportation Service).

In this case, the evidence of record reflects that the appellant served in the U.S. Merchant Marines from July 23, 1989, to February 16, 1992. See, e.g., June 2017 VA/DoD Identity Repository (VADIR)/Electronic DD Form 214; December 1990 and April 1991 Sea Service Letters, Department of Navy; December 1990 U.S. Merchant Mariner's Temporary Certificate of Identification/Service; December 2009 and May 2012 VA Form 21-526 (citing only to Merchant Mariner service); Hearing Transcript; and September 2017 Statement from appellant (indicating that his only service was in the U.S. Merchant Marines, from 1989 to 1992).  As the appellant served solely in the U.S. Merchant Marines after August 15, 1945, he is not eligible for VA compensation or pension benefits. See 38 C.F.R. § 3.7 (x)(15).  The evidence does not show any other qualifying service.  Further, the appellant has not argued that he is otherwise eligible for VA compensation or pension benefits. 

In cases such as this, where the law and not the evidence is dispositive, the claim is denied as a matter of law. See Sabonis, 6 Vet. App. at 430.

ORDER

Entitlement to Veteran status for purposes of establishing eligibility for VA compensation and/or pension benefits is denied.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs