Citation Nr: 21072607 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-42 811 DATE: December 3, 2021 ORDER The Appellant does not have recognized service for the purpose of eligibility for VA benefits; the appeal is denied. FINDING OF FACT The Appellant has no confirmed periods of service in active duty (AD), active duty for training (ADT), or inactive duty for training (IDT). CONCLUSION OF LAW The Appellant is not a veteran for the purpose of eligibility for VA benefits. 38 C.F.R. §§ 3.1, 3.12a. REASONS AND BASES FOR FINDING AND CONCLUSION Whether the Appellant is a veteran for the purpose of eligibility for VA benefits. The threshold question for eligibility for VA benefits is whether the claimant had qualifying military service. The Appellant contends he has such service. Eligibility for VA benefits is governed by specific statutory and regulatory criteria which define an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), (21), (22), (23), (24); 38 C.F.R. §§ 3.1, 3.6. Generally, in order to qualify for VA benefits, a claimant or the party on whose service the claimant predicates the claim must be a "veteran." Tagupa v. McDonald, 27 Vet. App. 95, 98 (2014) (citing Donnellan v. Shinseki, 24 Vet. App. 167, 170-71 (2010) (internal quotations omitted). A "veteran" is "a person who served in the active military, naval, or air service," and was discharged under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, which is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. The "Armed Forces" consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the U.S. service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria, 118 F.3d 747. With regard to verification of service, VA may accept evidence of service submitted by a claimant, such as a DD Form 214 (DD214), Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When a claimant does not submit evidence of service that meets the above requirements of 38 C.F.R. § 3.203(a) and (b), VA "shall request verification of service from the service department." 38 C.F.R. § 3.203(c). See also Tagupa, 27 Vet. App. at 99. The U.S. Court of Appeals for Veterans Claims (Court) has held that findings by a U.S. service department verifying or denying a person's service are binding and conclusive on VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Appellant claims that he served on active duty with the U.S. Marine Corps from June 1980 to June 1988, from January 1982 to December 1990, as well as some unspecified service in the 1990s. He also claimed that he served in combat in the Gulf War, in Iraq, and in Afghanistan, and that he was awarded two Purple Hearts. In an August 2016 statement in support of claim, the Appellant stated that he completed basic training at Parris Island, South Carolina, and fought in Desert Storm and Afghanistan. The Appellant did not provide any service documents, such as a DD214, in support of his claimed service. He has received treatment from VA Medical Centers (VAMCs) in New York and North Carolina. In August 2014 and May 2019, the National Personnel Records Center (NPRC) informed VA that it had no military personnel or medical records for the Appellant. Their search was conducted using the correct social security number. The Defense Personnel Records Information Retrieval System (DPRIS) also informed VA that it had no information concerning the Appellant. However, DPRIS indicates that electronic records are not available for Marine Corps personnel who were discharged prior to January 1, 1999. The paper records prior to January 1, 1999, are stored at the NPRC. In May 2020, the RO reviewed the Veterans Information Report to verify the Appellant's military service. VA/Department of Defense (DoD) Identity Repository (VADIR) showed no military service for the Appellant's social security number. Therefore, the service department could not verify that the Appellant had any service which would make him eligible for VA benefits. The Board is bound by the service department's conclusion. See Capellan, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA). Additionally, the Appellant's claimed dates of service are contradicted by the evidence of record. Social Security Administration (SSA) documents indicate that the Appellant reported that he was employed by Tops Supermarket from 1979 until 1991. He did not report any periods of military service in his application for SSA benefits. New York State Division of Criminal Justice Services documents show that the Appellant had committed a crime on March 15, 1991, and was convicted on July 29, 1992, to serve a prison term of 10 years. This evidence indicates that the Appellant was confined during a period of claimed military service. He also claimed to have served in combat in the Persian Gulf War, Iraq, and Afghanistan during his periods of service. The periods of the Persian Gulf War (Operation Desert Storm) were from August 1990 to February 1991; Operation Iraqi Freedom from March 2003 until December 2011; and Operation Enduring Freedom from October 2001 to December 2014. With the exception of Operation Desert Storm, the Appellant's claimed combat service could not have occurred during a period of recognized combat operations. The Appellant has retracted his assertion that he was awarded two Purple Hearts. In support of his status as a veteran, the Appellant presented a letter from the Chief of Administration Service of the New York VA Health Administration. As noted above, the Appellant has received VA care which, presumably, was predicated the presentation of a DD214 or similar government record establishing eligibility for VA medical care. A July 16, 2019, VA Social Work progress note stated that the "HINQ system does return with service history." The RO contacted the New York VAMC and the Durham VAMC and requested any copies of DD214's or similar service verification documents in their possession, and to clarify the HINQ system information. The RO also conducted searches with the SSA to verify the full name, age, date of birth, and social security number of the Appellant. Using variations of the Appellant's personally identifiable information, as provided by the Appellant, and as verified by the SSA, the RO conducted additional searches for the Appellant's service documentation used to establish VA medical care. The RO was unable to locate any evidence presented to the VAMCs indicating that the Appellant was eligible for VA medical care. The Board finds that the Appellant does not meet the definition of veteran and is not eligible for VA benefits. The service department has been unable to verify that the Appellant had qualifying service, and the Appellant submitted no other valid evidence of service under 38 C.F.R. § 3.203(a). There are no service department records supporting that such service occurred. The Board is bound by the service department's conclusions and, therefore, concludes that the Appellant is not eligible for VA benefits. In reaching this decision, the Board has carefully considered the statements submitted by the Appellant. As sincere as they are, these statements are not the equivalent of an official service department record of qualifying military service. In this case, there is no evidence from the service department, to include pay records, DD214, or other evidence, that would support a finding of qualifying service. The appeal is denied. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.