Citation Nr: 20046793 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-41 978 DATE: July 13, 2020 ORDER Nonservice-connected pension is denied.   FINDING OF FACT The appellant did not serve on active duty and does not have a service-connected disability. CONCLUSION OF LAW The criteria for nonservice-connected pension have not been met. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the Reserves with a period of active duty for training (ACDUTRA) from January 1974 to August 1974 and additional subsequent periods of ACDUTRA service. The case is on appeal from an April 2017 decision. In a March 2019 decision, the Board remanded the claim on appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Nonservice-connected pension. Legal Criteria VA nonservice-connected pension benefits are payable to a veteran who is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3. A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from 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; 38 C.F.R. § 3.3. The term “active military, naval, or air service” includes active duty, and “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 line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” 38 U.S.C. § 101; 38 C.F.R. § 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Thus, when a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA because of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA will not qualify as “active military, naval, or air service,” and the appellant will not achieve “veteran” status for purposes of that claim. 38 U.S.C. § 101; 38 C.F.R. § 3.6; see also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Analysis The appellant is seeking a non-service connected pension. In an August 2017 VA Form 9, the appellant stated that he was discharged after serving on active duty for more than 90 days while training. The appellant’s service personnel records (SPRs) show that her service from January 1974 to August 1974 in the Reserves was ACDUTRA, including an extended period of 13 weeks of ACDUTRA starting in April 1974. His SPRs also show additional periods of ACDUTRA service prior to being released from the Reserves in July 1983. Pursuant to the March 2019 Board remand, the RO contacted the Marine Corps Manpower Management Records and Performance Branch (MMRP) to verify if the appellant had active duty service. In an April 2020 e-mail correspondence, a Marine Corps MMRP representative stated that he was unable to find any periods of active duty service for the appellant after August 1974. While the appellant’s ACDUTRA period from January 1974 to August 1974 occurred during the Vietnam War, this period of service did not constitute “active duty” service since it was ACDUTRA. 38 U.S.C. § 101; 38 C.F.R. § 3.6; see also Mercado-Martinez, 11 Vet. App. at 419. 38 C.F.R. § 3.6(b)(1) specifically distinguishes ACDUTRA from the definition of active duty. ACDUTRA is not the same thing as active duty, and the law has clearly defined each so as to draw a clear distinction between the two. In contrast to claims based on active duty, when a pension claim is based on a period of ACDUTRA, there must be evidence that the appellant became disabled due to disease or injury during such service. Here, the evidence does not establish that the appellant became disabled due to disease or injury during the such service. As the appellant does not have a period of active duty service, there is no qualifying period of active military, naval, or air wartime service. Thus, as the appellant has not achieved “veteran” status for purposes of the pension claim, the benefit of the doubt doctrine is not applicable and a nonservice-connected pension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.