Citation Nr: 20006250
Decision Date: 01/28/20	Archive Date: 01/24/20

DOCKET NO. 13-28 569
DATE: January 28, 2020

ORDER

Entitlement to nonservice-connected pension is denied.

FINDING OF FACT

The Veteran did not serve during a period of war.

CONCLUSION OF LAW

The criteria for basic eligibility for nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from May 1979 to July 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in January 2013.

1. Entitlement to nonservice-connected pension

Improved nonservice-connected pension is a benefit payable by VA to a veteran   of a period of war who is permanently and totally disabled from a nonservice-connected disability not the result of his or her willful misconduct. 38 U.S.C. § 1521(a). Basic entitlement exists in relevant part, if the veteran served in the active military, naval or air service for 90 days or more during a period of war. See 38 C.F.R. § 3.3(a)(3). The specific dates encompassing the “periods of war” are defined by statute. 38 U.S.C. § 101(11).

The appellant’s period of active duty service is considered peacetime service,       or service outside a “period of war,” as defined by statute. In this regard the “Vietnam Era” period of war ended on May 7, 1975, and the “Persian Gulf War” began on August 2, 1990. 38 C.F.R. § 3.2 (2019). While the Board acknowledges the appellant’s assertion that he served in Korea, cannot work, and receive social security benefits due to disability, the fact remains that he did not have any wartime service as defined by regulation and, therefore, the criteria for basic eligibility to nonservice-connected pension have not been met. As the law, and    not the evidence, is dispositive in this case, the claim must be denied as a matter    of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. N. Wilson, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.