Citation Nr: 23019397 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 16-42 529 DATE: March 29, 2023 ORDER Entitlement to nonservice-connected pension is denied. FINDING OF FACT The Veteran did not serve during a period of war. CONCLUSION OF LAW The criteria for basic eligibility for nonservice-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1958 to October 1961. This matter comes to the Board of Veterans' Appeals (Board) from a December xx determination of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which denied the Veteran's entitlement to nonservice-connected disability pension. In his VA Form 9, the Veteran requested a Board hearing on the issue on appeal. In March 2019, the Veteran was notified that a hearing had been scheduled. In March 2019, prior to the hearing, the Veteran indicated that he wished to withdraw his request for a Board hearing, that he could not attend, and he requested that a decision be rendered based on the evidence of record. Thus, the Board will proceed without a hearing. See 38 C.F.R. § 20.704. A November 2020 Board decision denying the claim was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in June 2021. In accordance with the CAVC remand, in July 2021, the Board remanded the claim to the AOJ for additional development. The case has since returned to the Board for consideration. The Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 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 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. 38 U.S.C. § 1521 (a); 38 C.F.R. §§ 3.3, 3.314(b). 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 (j); 38 C.F.R. § 3.3 (a)(3). The term "period of war" means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress. 38 U.S.C. § 1501 (4); see 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. §§ 3.2, 3.3(a)(3) and (b)(4)(i). In the present case, the Veteran's DD Form 214 shows that he served on active duty from January 10, 1958 to October 19, 1961. He does not contend otherwise. Unfortunately, the claim must be denied because such service does not coincide with a period of war, as defined by VA regulation. 38 C.F.R. § 3.2. Under 38 U.S.C. §101 and 38 C.F.R. §3.2 (f), specifying periods of war, the Korean conflict ended on January 31, 1955; the Vietnam era began on August 5, 1964. Therefore, the Veteran did not serve during either the Korean conflict or the Vietnam era and thus did not serve during a period of war. The Board recognizes that, in some cases, the Vietnam era is considered to have begun on February 28, 1961, but only for veterans who served in the country of Vietnam. On January 29, 2019, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), which held that the phrase "service in the Republic of Vietnam" includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. Procopio further noted that territorial seas have a breadth "not exceeding 12 nautical miles." Id. The Veteran's military personnel records show that he served aboard the USS St. Paul (CA-73) between February 28, 1961 and October 19, 1961 (the date of separation). The Veteran contends that the St. Paul provided support along the Vietnam coast, and that he was in-country for roughly six days. The development conducted on remand indicates that, indeed, the St. Paul steamed up the Saigon River and moored in Saigon, Vietnam for four days in October 1960 while the Veteran was aboard. However, the dates of the St. Paul's location in Vietnam do not coincide with the Vietnam era as defined by regulation. In other words, the ship was "in country" prior to February 28, 1961, meaning such service cannot be used to establish eligibility for pension. The St. Paul's ship history does not show that it was within 12 nautical miles of Vietnam between the start of the Vietnam era in February 1961 or the Veteran's separation in October 1961. During that time, the St. Paul was in the Pacific region, just not within 12 nautical miles of Vietnam. The Board acknowledges that there are two conflicting memoranda in the claims file regarding whether the Veteran served "in country" in Vietnam. One memorandum, dated January 10, 2023, indicates that the Veteran did not have qualifying service in a nautical location. The other memorandum, dated January 11, 2023, shows that "exposure to herbicides is recognized based on the Veteran's nautical service in/on the Republic of Vietnam's inland waterways." The Veteran's representative has questioned whether this conflict between the two memoranda indicate further clarification on potential Vietnam service is needed in this case. However, the Board finds that the January 11, 2023 memoranda is correct in that the Veteran did service "in country" in Vietnam when he was stationed aboard the U.S.S. St. Paul when it steamed up the Saigon River and moored in Saigon, Republic of Vietnam in October of 1960. However, this does not change the fact that in order to establish wartime service, the Veteran must have been in-country in Vietnam at some point between February 28, 1961 and October 19, 1961, and the evidence clearly shows this was not the case. Finally, the Veteran contends that his vessel escorted the Chinese Nationalist ships into ports of islands that were coming under heavy bombardment, thus qualifying as service under wartime conditions. However, this conflict has not been recognized to constitute a period of war. Therefore, this period of service cannot be the basis for a finding of wartime service for the purposes of entitlement to nonservice-connected pension. Although the Board is sympathetic with respect to the Veteran's disability and his request for aid and attendance, 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 service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Accordingly, the Veteran's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. HYLAND 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.