Citation Nr: 18152220 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-12 442 DATE: November 21, 2018 ORDER Reopening of the issue of entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT VA has not received new evidence since a final July 2015 decision that denied entitlement to nonservice-connected pension benefits that relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria for reopening the issue of entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota, that denied entitlement to nonservice-connected pension benefits. The Appellant withdrew his request for a Board hearing in an October 2018 written statement. See 38 C.F.R. § 20.704(e). The record establishes the Appellant has been denied entitlement to nonservice-connected pension benefits on several occasions in the past due to a lack of the requisite active service. VA denied the Appellant’s initial pension claim in May 2007. The Pension Management Center issued the most recent final decision in July 2015 since VA did not receive a notice of disagreement or new and material evidence within one year of notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302. Although the Agency of Original Jurisdiction (AOJ) adjudicated the issue of entitlement to nonservice-connected pension benefits as an original claim in the decision that led to the present appeal, a determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As a result, the Board must address the question of whether new and material evidence has been presented to reopen the claim regardless of the AOJ’s action. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. VA has not received any evidence since the final July 2015 pension decision that suggests the Appellant had additional active service beyond the 42-day period from February 1965 to April 1965, which is insufficient to establish entitlement to nonservice-connected pension benefits. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). The Appellant does not have any service-connected disabilities and was therefore not separated from service in April 1965 due to a service-connected disability. The Appellant has never asserted he had active service beyond the period from February 1965 to April 1965. Thus, the criteria for reopening the issue of entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board notes the Appellant filed the claim that led to the present appeal via the Fully Developed Claim program. VA Form 21-527EZ includes the general notice requirements for pension claims. Nevertheless, the provisions of the Veterans Claims Assistance Act (VCAA) do not apply in instance like the present appeal where the law as mandated by statute, and not the evidence, is dispositive of the claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (holding the VCAA did not apply in the context of a veteran’s appeal of whether his active service was sufficient to establish entitlement to nonservice-connected pension benefits). As the law is dispositive in this appeal, the Board finds the Veteran’s claim must be denied at this juncture due to lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel