Citation Nr: 18155018 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 10-07 915 DATE: December 3, 2018 ORDER Entitlement to nonservice-connected pension benefits based on eligible wartime service is denied. FINDING OF FACT The Veteran did not have qualifying wartime service for purposes of nonservice-connected pension eligibility. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits based on eligible wartime service have not been met. 38 U.S.C. §§ 101, 1521, 5107, 7104; 38 C.F.R. §§ 3.3, 3.6, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1948 to August 1949 with additional service in the Army Reserve from August 1949 to September 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. As a matter of background, this appeal previously came before the Board in July 2011, at which time it was remanded so that the Veteran could be afforded a hearing before a Veterans Law Judge. It returned to the Board in October 2015, at which time it was remanded for further development. In September 2015, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. Entitlement to nonservice-connected pension benefits based on eligible wartime service The Veteran seeks entitlement to nonservice-connected pension benefits, which to date have been denied based on lack of eligible wartime service for pension purposes. The Board finds that the Veteran does not have the eligible wartime service for such a grant. Pension benefits will be paid to each veteran of a period of war who meets the necessary service requirements and who is permanently and totally disabled form nonservice-connected disability, nor the result of the Veteran’s willful misconduct. 38 U.S.C. § 1521(a). The qualifying periods of war for nonservice-connected pension benefits are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era and the Persian Gulf War. For purposes of this case, the Board observes that the periods of war for World War II encompass December 7, 1941, through December 31, 1946; the periods of war applicable to the Korean conflict are June 27, 1950, to January 31, 1955. Basic entitlement exists if a veteran: (i) served in the active military, naval or air service for 90 days or more during a period of war; or (ii) served in the active military, naval or air service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; or (iii) served in the active military, naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war; or (iv) served in the active military, naval or air service for an aggregate of 90 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). “Active military, naval or air service” is defined as including (A) active duty; (B) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (C) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died— (i) from an injury incurred or aggravated in line of duty; or (ii)from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In the present case, the Veteran had active service from August 1948 to August 1949, which is documented on his DD-Form 214, and which falls between the World War II and Korean Conflict periods. After separating from active duty, the Veteran transferred to the Ready Reserve of the Army Enlisted Reserve Corp. He was honorably discharged from the Army Reserve in September 1953. For his part, the Veteran testified before the undersigned that his service in the Ready Reserve included serving one day a week of training and then two weeks every summer for training – training which is otherwise known as ACDUTRA. He testified that he was not called up to go to Korea or any other active duty status following his transfer to the Reserve. A review of the claims file shows that the Veteran’s military personnel records are incomplete. Following the most recent Board remand, a formal finding was issued which indicated that the Veteran’s records are fire-related (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973) and any further attempt to locate those records would be futile. As such, the Board recognizes that VA’s duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In conjunction with the Board’s order for further development regarding those fire-related records, the Veteran was afforded the opportunity to provide any further evidence in support of his claim, to include any copies he may have of his service treatment records and military personnel records. While he did provide several records, they are duplicates of those already associated with the claims file. However, even affording the Veteran the heightened benefit-of-the-doubt in this matter, the Board must deny the claim. The Veteran’s only confirmed active duty fell between two periods of war without either the beginning or end of that confirmed active duty falling in a period of war. Thus, it does not meet the qualifying consecutive 90-day-period-of-war criteria. While his Ready Reserve service certainly did extent into the Korean conflict period, he had testified that he was never called up to active duty status during that entire period. Further, by his own testimony, he has admitted that his Reserve service consisted of one day a week, plus two weeks every summer of ACDUTRA. As discussed above, ACDUTRA only qualifies as “active military, naval, or air service” if the individual serving ACDUTRA was disabled or died from a disease or injury incurred or aggravated in line of duty. In this case there is no evidence that the Veteran ever became disabled during his Reserve component. Further, there is no indication that such ACDUTRA ever consisted of 90 consecutive days during a period of war. Finally, the Board notes that he was not discharged or released from such service for a service-connected disability and did not serve in two separate periods of war. The Board is certainly not unsympathetic to the Veteran’s claim – he served his country honorably from August 1948 to August 1949, and continued to serve honorably in the Reserve for an additional four years. Unfortunately, the nature of that Reserve service does not qualify as “wartime service” within the statutory definition of the term. The Board is bound by Federal law and is without authority to grant the benefit sought on an equitable basis. See 38 U.S.C. § 7104(c). In sum, the Veteran did not have qualifying service during a period of war and basic eligibility for nonservice-connected pension benefits is not established. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel