Citation Nr: 1808701 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-30 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Loan Center in Atlanta, Georgia THE ISSUE Basic eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant had honorable active military service from July 17 to September 9, 1975, a term of one month, twenty-three days. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 decision by the Department of Veterans Affairs (VA) Regional Loan Center (RO) in Atlanta, Georgia. In February 2015, the case was remanded for further development. FINDING OF FACT The appellant had active military service from July 17 to September 9, 1975; he did not serve on active duty for 90 days or more during a period of war or for 180 days or more during peacetime and was not discharged due to service connected disability. CONCLUSION OF LAW The criteria for home loan guaranty eligibility under Chapter 37, Title 38, United States Code, are not met. 38 U.S.C.A. §§ 3702 (a), 5303A(a), (b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to the instant appeal because turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action is harmless error. The Board also notes that there has been substantial compliance with the February 2015 remand instructions as the RO did make appropriate attempts to obtain additional information pertaining to the claim and did associate additional information obtained with the claims file. Moreover, the appellant is not prejudiced by any failure in this regard as the existing evidence of record is sufficient to decide the instant claim as a matter of law and there is no reasonable possibility that any further assistance VA would provide to the appellant would substantiate the claim. Accordingly, further remand of the claim would not result in any benefit to the appellant and would cause an unnecessary delay in the adjudication of the case. See Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991) II. Analysis For veterans who served before September 7, 1980, basic entitlement to home loan guaranty benefits are generally available to individuals who were discharged or released from a period of active duty for a service-connected disability; served for 90 days or more during World War II, the Korean conflict or the Vietnam era; served for more than 180 days and were discharged or released under conditions other than dishonorable; or based on a couple of other situations not pertinent to this appeal. 38 U.S.C.A. § 3702 (a)(2). Notably, the Korean conflict occurred from June 27, 1950 through January 31, 1955, and the Vietnam era occurred from February 28, 1961 to May 7, 1975, for veterans serving in Vietnam, and from August 5, 1964 to May 7, 1975 for all other cases. 38 C.F.R. § 3.2. In this case, the appellant had active service from July 17 to September 9, 1975, a period of 55 days. Consequently, he did no serve for 90 or 180 days during any period. Accordingly, entitlement to a home loan guaranty benefits is not warranted based on the length of the appellant's service. 38 U.S.C.A. § 3702 (a)(2). The appellant also has appeared to assert that he was discharged for a service-connected disability and should thus be eligible for loan guaranty benefits. In this regard, the service treatment records show that in August 1975, the appellant was found to have first degree spondylolisthesis with bilateral spondylosis and low back pain, which was assessed to have been present prior to his entry into service. Based upon this assessment, the appellant was advised on August 13, 1975 that preliminary findings indicated that he was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards and that provided that the approved findings of a Medical Board corroborated the preliminary findings concerning the physical unfitness, he could be discharged under the provisions of Army Regulation (AR) 635-200 even though he met the physical standards for retention. He was also advised that if he chose to be discharged, he would be honorably separated for erroneous induction/enlistment unless other circumstances required a different type of separation. After being so advised, the appellant requested separation from service, indicating that he did not desire to complete the term of service for which he had been enlisted/inducted. The Medical Board found that the appellant had first degree spondylolisthesis with bilateral spondylosis and chronic low back pain. The Medical Board also found that these conditions were not incurred in the line of duty as they existed prior to entry on active duty and had not been aggravated by active duty. The Medical Board recommended that the appellant be returned to duty for separation from service for erroneous induction/enlistment under Paragraph 5-9 of Army Regulation (AR) 635-200. Paragraph 5-9 of AR 635-200 authorized commanders to discharge individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment. See e.g. AR 635-200, page 5-3, 1966. The Medical Board finding was approved by the appellant's commanding officer and the appellant also affirmatively indicated that he did not desire to continue on active duty. Thus, the appellant was discharged on September 9, 1975. Accordingly, he was not discharged due to a service-connected disability and is not eligible for loan guaranty benefits on this basis. 38 U.S.C.A. § 3702 (a)(2). (The Board also notes that the appellant has previously claimed service connection for spondylolisthesis with spondylosis, a claim that has been denied by VA. The appellant does not currently have claim for service connection pending for this disability). The appellant has also asserted that he should be granted eligibility for current home loan guaranty benefits because he was granted eligibility to such benefits in the past. The Board sympathizes with this assertion as the evidence of record appears to indicate that the appellant was granted VA home loan guaranty benefits in the past. However, the Board does not have the authority to grant current VA home loan guaranty benefits simply based on the appellant having been awarded these benefits in the past. Rather, it is bound to follow the controlling legal authority. This authority does not allow for an award of these benefits for an appellant with less than 90 days service who was discharged due to not having been medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment. Id. In other words, the Board is bound to follow the law and has no authority to grant benefits on an equitable basis. See e.g. Harvey v. Brown, 6 Vet. App. 416, 425 (1994); McTighe v. Brown, 7 Vet. App. 29 (1994) (holding that payment of government benefits must be authorized by statute; thus, erroneous advice given by a government employee cannot be used to estop the government from denying benefits); Smith (Edward) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (explaining that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress"). Accordingly, the appellant's claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Basic eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs