Citation Nr: 21024857 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 19-14 287 DATE: April 26, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The appellant did not have the requisite active service to qualify for VA nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101, 107; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.7, 3.203, 3.314. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the United States Army Reserve, which included periods of active duty for training from July 8, 1968 to September 16, 1968, and on November 12, 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2018 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in August 2019. The Board issued a decision in November 2019 that denied the claim. The appellant appealed the Board's November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Remand, the parties requested that the Court vacate the November 2019 Board decision that denied entitlement to nonservice-connected pension benefits on the basis that the Board did not comply with 38 C.F.R. § 20.715(a)(1), which requires it to notify an appellant and his/her representative in writing in the event that the Board discovers a Board hearing has not been recorded in whole or in part due to equipment failure or other cause. In a July 2020 Order, the Court granted the Joint Motion. The Board sent appellant a letter in March 8, 2021 informing him that the August 2019 Board hearing transcript contained significant inaudible portions of testimony and that while a decision could be made on the appellate record as it is, he was being offered the opportunity to submit a motion for a new hearing. The appellant was specifically informed that if he did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and would proceed accordingly. The appellant did not respond to this letter. The Board notes there are other issues in appellate status that will be the subject of a later Board decision if necessary. 1. Entitlement to nonservice-connected pension benefits The payment of nonservice-connected disability pension benefits is provided to veterans who are permanently and totally disabled from a nonservice-connected disability that is not the result of willful misconduct, but only where a veteran has the requisite service. 38 U.S.C. § 1521 (a); 38 C.F.R. §§ 3.3, 3.314(b). A claimant for VA pension benefits meets the necessary service requirements if there is sufficient evidence that he served in active military, naval, or air service under one of the following conditions: (i) for 90 days or more during a period of war; (ii) during a period of war, if he was discharged or released from such service for a disability adjudged service-connected without the presumptive provisions of law, or at the time of discharge, he had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (iii) for a period of 90 consecutive days or more, if such period began or ended during a period of war; or (iv) 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(j); 38 C.F.R. § 3.3(a)(3). The appellant seeks entitlement to nonservice-connected pension. His service personnel records and development conducted in conjunction with this claim and others indicate that he served in the United States Army Reserve, but that he did not have any active duty service and only had a period of active duty for training between July 8, 1968 and September 16, 1968, to attend a chaplain officer basic course at Fort Hamilton, New York; and a period of active duty for training on November 12, 1969, when he attended “Command & Staff Pro” training at the Dayton U.S. Army Reserve School. While the appellant did have approximately 60 days of active duty for training in the Reserve, the regulations stipulate that the service eligible for pension be active service. No such service exists in this case. While the Board acknowledges that the appellant contends he had active duty service, this assertion has not been corroborated by the official records of service. The Board acknowledges that the RO sent the appellant a letter in January 2011 suggesting he had active service from November 1969 to May 1973, and a letter in August 2015 suggesting he had active service from November 1969 to October 1993; however, such information is clearly incorrect when compared with his military personnel records. For example, records show he had no active duty points from December 1968 to December 1969, and an Army Reserve discharge record shows he was discharged from the Reserve on September 21, 1970 because of withdrawal of ecclesiastical endorsement. He had requested discharge to go to college in August 1970. A request for verification of service dated in March 2007 revealed a response from the National Personnel Records Center indicating the appellant had only active duty for training, with no active duty. Thus, while these RO letters mischaracterized his service as being active duty rather than reserve service, incorrect information in this letter is insufficient to establish that the appellant actually had active duty service. The Board is not bound by erroneous advice dispensed by a VA employee. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits); see also Owings v. Brown, 8 Vet. App. 17, 23 (1995) (even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d 86 F.3d 1178 (Fed.Cir.1996). Upon review of the evidence of record, the Board finds the appellant lacks the required active military service and he is not eligible for nonservice-connected pension benefits. Thus, the claim must be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.