Citation Nr: 22019680 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 16-58 427 DATE: April 2, 2022 ORDER Entitlement to nonservice-connected pension is denied. FINDINGS OF FACT 1. The Veteran had less than 90 days of active service. 2. The Veteran has no service-connected disabilities and was not discharged from service due to a service-connected disability. CONCLUSION OF LAW The criteria for nonservice-connected pension are not met. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1968 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) from a decision dated in July 2016 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in December 2021. A copy of the transcript has been associated with the record and reviewed. During the hearing, the Veteran waived AOJ review of any evidence submitted to the record since the November 2016 Statement of the Case. Entitlement to nonservice-connected pension The Veteran contends that he meets the minimum qualifications for pension benefits. As explained in more detail below, the Board finds that the Veteran's claim for pension must unfortunately be denied. Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct, depending on certain income and net worth requirements. 38 U.S.C. § 1521 (a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements for pension 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 (j); 38 C.F.R. § 3.3 (a)(3). The threshold issue to initially address in any pension case is whether the Veteran had the requisite service. If that issue is answered in the affirmative, the additional issues of net worth and income requirements will then be addressed. However, if the Veteran did not have the requisite service, there is no need to proceed further, or to address any other related issue. In the present case, the Veteran's DD Form 214 shows that he served on active duty from August 14, 1968 to November 1, 1968. He does not contend otherwise. In this case, the Veteran did serve during a period of war. However, he did not serve for 90 days or more. As he served for 80 days, the Veteran does not have sufficient service to establish threshold requirement for pension. Next, given that the Veteran had less than 90 days of active service, he can only establish eligibility for pension benefits if the evidence shows that he was discharged or released from service due to a service-connected disability. Here, the evidence does not show that he was discharged or released from service due to a service-connected disability. Notably, his DD Form 214 shows he was discharged for "hardship." Thus, the evidence does not show eligibility for pension benefits due to a service-connected disability. Additionally, at this time, the Veteran is not currently service-connected for any disability, and cannot be found to have been discharged from the service due to a service-connected disability. The Veteran testified that he was discharged due to family problems that were beyond his control and not his fault, and that he wants his hardship considered when calculating his dates of service. The Veteran also reported that, at the time of his discharge, he was not told he needed a minimum period of service to be eligible for benefits and he should have been notified. The Veteran noted that he met the other requirements for pension, including an honorable discharge, permanent and total disability, and income. The Board notes that the statute outlining eligibility for pension does not include an exception for hardship. See 38 C.F.R. § 3.3. The Board further notes that the law regarding pension eligibility is separate and distinct from the laws defining eligibility for other VA benefits, such as education or healthcare, and the Veteran's length of service may not bar him from other benefits. Compare, e.g., 38 C.F.R. § 3.3 (pension) to 38 C.F.R. § 3.4 (compensation) and 38 C.F.R. § 3.12a (explaining minimum active duty service requirements, and noting that a person released under a hardship discharge is eligible for certain benefits). Finally, while the Veteran may arguably meet other requirements for pension, which the Board does not decide in this case, eligibility based on service is a threshold determination that must be made before the other factors are considered. Therefore, since the Veteran does not have the requisite service, the Board need not address whether he meets income and net worth criteria. Although the Board is sympathetic to the Veteran's claim, without the requisite qualifying service, he is not eligible for VA nonservice-connected pension benefits. In this case, the law is dispositive and the Board has no discretion to find the Veteran eligible for pension. "[S]ervice department records are binding on VA for purposed of establishing qualifying service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Smith (Edward) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (explaining that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress"). The Board is legally precluded from finding otherwise. 38 C.F.R. § 20.101. Since the law defining qualifying service is binding on the Board and the Veteran's service department record shows he does not qualify for pension under the applicable law, the Veteran's claim must be denied. To the extent that the Veteran may be asserting that equity warrants the grant of nonservice-connected pension benefits, matters of equitable relief are only within the discretion of the Secretary of VA. The Board does not have the authority to award equitable relief. 38 U.S.C.A. § 503; Darrow v. Derwinski, 2 Vet. App. 303 (1992). Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.