Citation Nr: 20006792 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 13-34 071A DATE: January 28, 2020 ORDER Entitlement to a certificate of eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits is denied. FINDING OF FACT 1. The appellant served in the Army National Guard from November 22, 1972 to March 18, 1977. 2. The appellant had a period of active duty for training (ACDUTRA) from April 20, 1973 to August 24, 1973. 3. The appellant was not discharged or released before completing six years of service in the Army National Guard due to a service-connected disease or injury. CONCLUSION OF LAW The criteria for basic eligibility for VA home loan guaranty benefits have not been met. 38 U.S.C. §§ 3701, 3702 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had a period of ACDUTRA from April 1973 to August 1973, with prior and subsequent service in the Army National Guard from November 1972 to March 1977. In August 2015, the appellant testified at a Board of Veterans’ Appeals (Board) hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a November 2019 letter, the appellant was notified that the VLJ who conducted his hearing was no longer employed at the Board. The letter stated that, pursuant to 38 U.S.C. § 7107(c) and 38 C.F.R. § 20.707, the law required that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal, and as that person was no longer available, the appellant’s appeal would be assigned to another VLJ for a decision. The letter notified the appellant of his right to request another optional Board hearing, and indicated that if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, the appellant has not filed any correspondence indicating a desire for another hearing. In February 2016, the Board issued a remand with instructions to the Agency of Original Jurisdiction (AOJ) to obtain pertinent documents that appeared to be missing from the claims file, to include the appellant’s original claim form, copies of notice he was provided in connection with his claim, and the appellant’s service treatment and service personnel records. The appellant subsequently submitted additional records in his possession, including personnel records and evidence pertaining to the circumstances of his discharge from service. In a February 2017 memorandum, an Assistant Loan Production Officer at the AOJ noted that the appellant’s claim had been submitted electronically, and that all documents in the agency’s possession had been uploaded to VA’s virtual records system. The AOJ then issued a Supplemental Statement of the Case (SSOC) readjudicating the matter. Copies of the February 2017 memorandum and SSOC were mailed to the appellant. In light of the above, the Board finds that the appellant has received the requisite notice regarding his appeal, and all available records have been associated with the claims file. The appellant has not alleged that there is any outstanding evidence which needs to be obtained. Thus, the Board finds that the AOJ has substantially complied with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Eligibility for VA home loan guaranty benefits The appellant contends that he is entitled to a certificate of eligibility for VA home loan guaranty benefits. Entitlement to a certificate of eligibility for loan guaranty benefits is dependent upon length of service. A certificate of eligibility for VA home loan guaranty benefits is granted only to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C. §§ 3701 and 3702. For purposes of these benefits, the term “Veteran” includes an individual who has completed a total service of at least six years in the Selected Reserve and, following the completion of that service, was discharged from service with an honorable discharge, was placed on the retired list, was transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or continues serving in the Selected Reserve. A certificate of eligibility for loan guaranty benefits may also be granted to a veteran who was discharged or released from the Selected Reserve before completing six years of service because of a service-connected disability. 38 U.S.C. § 3701. The term Selected Reserve means the Selected Reserve of the Ready Reserve of any of the reserve components, including the Army National Guard of the United States and the Air National Guard of the United States, of the Armed Forces. 38 U.S.C. § 3701. The Board notes that there are additional ineligibility criteria (as well as exceptions to the ineligibility criteria) set forth at 38 U.S.C. § 5303A. However, these provisions only apply to claimants who initially entered service after September 7, 1980. As the appellant entered service prior to that date, the provisions of 38 U.S.C. § 5303A do not apply to him. The Board is aware that the appellant submitted argument in January 2017 suggesting that he qualified for an exception to the ineligibility requirements of 38 U.S.C. § 5303A. Because 38 U.S.C. § 5303A is inapplicable under the circumstances of this case, this argument is unavailing. In any event, the threshold question in this case is whether the appellant meets the initial definition of a “Veteran” under 38 U.S.C. § 3701, and if so, whether he meet the minimum required period of service for VA home loan guaranty benefits as set forth in 38 U.S.C. § 3702. The appellant’s service personnel records indicate he had a period of ACDUTRA from April 1973 to August 1973, with prior and subsequent service in the Army National Guard from November 1972 to March 1977, at which time he was granted an honorable discharge. The appellant does not contend that he had any additional periods of Reserve service. Rather, he admits that he was discharged in March 1977, prior to the completion of the six-year minimum service period. There is no evidence to suggest that the appellant ever served on active duty. Accordingly, even when resolving all reasonable doubt in the appellant’s favor, he does not meet the basic eligibility requirements for VA home loan guaranty benefits. See 38 U.S.C. §§ 3701, 3702. The appellant indicated in written correspondence and at his Board hearing that he was discharged by reason of psychological trauma that resulted from witnessing his father commit suicide. The record includes a February 1977 letter from a psychology student who apparently treated the appellant which reflects that the appellant “requested release from his obligation to the South Carolina National Guard for psychological reasons.” At his Board hearing, the appellant confirmed that after his father died he “went slant.” Thereafter, he reported having mental health problems which eventually led to his discharge in March 1977. The appellant has not been service-connected for any disease or injury, nor has he ever filed a claim for service connection. Notwithstanding his reports of mental health problems during his period of Reserve service, there is no evidence to suggest that these problems occurred in the line of duty. Therefore, it cannot be said that he was discharged on account of a service-connected disability. (The Board emphasizes that nothing in this decision precludes the appellant from filing a claim for service connection related to the psychological trauma he experienced. Indeed, the appellant is encouraged to file such a claim, particularly if he believes his mental health problems are service-related.) Unfortunately, the Board is simply unable to find, based on the facts of record and the applicable law, that the appellant meets the statutory definition of “veteran” for purposes of VA home loan guaranty benefits. As noted above, he has not demonstrated that he had active service for the requisite time period, and the evidence does not reflect that he was discharged on account of a service-connected disability. Even in the light most favorable to the appellant, the evidence demonstrates no more than five years of creditable service in the Reserves. In short, the appellant has not satisfied the basic elements of entitlement to VA home loan guaranty benefits. See 38 U.S.C. §§ 3701, 3702. The Board has great sympathy for the unfortunate experiences that led to the appellant’s discharge from the Army National Guard. This decision does not detract from the appellant’s honorable service to his country. However, because the appellant has not met the legal requirements for VA home loan guaranty benefits, his claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.