Citation Nr: 1808457	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-35 510	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to nonservice-connected pension.   


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel



INTRODUCTION

The Veteran served on active duty from September 1959 to September 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

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) (2012).


FINDINGS OF FACT

The Veteran did not have active service during a period of war. 


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected pension benefits are not satisfied.  38 U.S.C. §§ 101, 1521, 5303 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.12 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Applicable Law

Pension is payable to a veteran who meets the service requirements and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of willful misconduct, or who is 65 years of age or older.  38 U.S.C. § 1521(a); 38 C.F.R. § 3.3.  A veteran meets the service requirements if such veteran served in the active military, naval, or air service: (1) for ninety (90) days or more during a period of war, (2) during a period of war and was discharged or released from such service for a service-connected disability, (3) for a period of 90 consecutive days or more and such period began or ended during a period of war, or (4) 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).

The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a) (2017).  The term "active duty for training" includes, among other things, certain full time duty in the Army National Guard.  38 U.S.C. § 101(22); 38 C.F.R. §§ 3.6(c)(3), 3.7(m) (2017).


II. Analysis

The Veteran's service personnel records show that he had active service from September 1959 to September 1962 .  This period does not coincide with a period of war, as defined by VA regulation.  See 38 C.F.R. § 3.2.  The Korean conflict ended January 31, 1955.  Id.  A veteran who served in the Republic of Vietnam beginning on February 28, 1961, and ending on May 7, 1975, inclusive, is considered to have served during the Vietnam Era.  38 C.F.R. § 3.2.  Otherwise, a veteran is considered to have served during the Vietnam Era for active service beginning on August 5, 1964, and ending on May 7, 1975, inclusive.  Id.  As the Veteran did not serve in the Republic of Vietnam, his service from February 28, 1961 through September 1962 does not qualify as service during the Vietnam Era.  See id.

The Board notes that the Veteran was enlisted in the Army Reserve through August 1965.  Such enlistment does not in itself qualify as active service.  See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); Mercado-Martinez v. West, 11 Vet. App. 415 (1998). 

Because the Veteran did not have active service during a period of war, the criteria for entitlement to pension benefits are not satisfied.  See 38 U.S.C.A. § 1521(a) and (j); 38 C.F.R. § 3.3.  

The Board is grateful to the Veteran for his honorable service, and regrets that it cannot render a favorable decision on this claim.  There is no authority in the law for an award of NSC pension benefits without service during a period of war.  As this claim must be denied as a matter of law, the benefit-of-the-doubt rule does not apply.  See Sabonis v. West, 6 Vet. App. 426, 430 (1994); cf. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Nonservice-connected pension is denied. 



____________________________________________
P. M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs