Citation Nr: 18144817 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-38 571 DATE: October 25, 2018 ORDER Entitlement to nonservice-connected pension is denied. FINDING OF FACT The appellant did not have qualifying active service during a period of war as recognized by VA. CONCLUSION OF LAW The criteria for eligibility for nonservice-connected pension have not been met. 38 U.S.C. §§ 101, 1521 (West 2014); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.7 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2017 decision by the Pension Center located in the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. Entitlement to nonservice-connected pension This appeal arose in connection with the appellant’s application for VA nonservice-connected pension benefits. Nonservice-connected disability pension payments may be made to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. § 1521(a). When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of veteran. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, a person must demonstrate by preponderance of evidence qualifying service and character of discharge). A “veteran” is “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); 38 C.F.R. § 3.1(d). Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department, if the evidence meets the following conditions: (1) The evidence is a document issued by the service department. A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian’s custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. The appellant asserts that he is a Veteran and qualifies for VA disability benefits. He asserts that he served in the U.S. Air Force in Greenland for approximately eight years during the 1950s. See, e.g., May 1990 Questionnaire about Military Service; October 2017 Questionnaire about Military Service. However, the appellant has not provided VA with any evidence of military service, such as a DD-214 or Certificate of Discharge. It appears that the appellant worked for the U.S. Air Force in food services as a civilian employee. See id. Moreover, VA has made reasonable efforts to verify the appellant’s alleged military service with the information he has provided, but no record of military service has been found. See, e.g., May 2018 VA memorandum. In the absence of evidence that the appellant served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable, the appellant is not considered a “Veteran” for the purpose of entitlement to nonservice-connected pension benefits. Therefore, the Board finds that the weight of the evidence demonstrates that the appellant did not have qualifying military service. The Board has also considered 38 C.F.R. § 3.7, which lists individuals and groups considered to have performed active military, naval, or air service. Unfortunately, the appellant’s work in food services does not fall within the exceptions currently allowed by 38 C.F.R. § 3.7. Any additions to that regulatory provision must come from the Department of Defense, and not VA. See Section 401, Pub. L. 95-202, 91 Stat. 1449 (stating that certain civilian employment or contractual service, deemed as such at the time such service was rendered, shall be considered active duty for the purposes of all laws administered by the Veterans’ Administration if the Secretary of Defense finds that the service of such group constituted active military service and issues to each member of such group a discharge from such service). In Sabonis v. Brown, 6 Vet. App. 426,430 (1994), the Court held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. As the appellant does not have the requisite military service during a period of war, the provisions of 38 U.S.C. §§ 101(2), 101(10) and 1521, as well as 38 C.F.R. §§ 3.2, 3.3, 3.6, and 3.7 preclude eligibility to nonservice-connected pension benefits. As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel