Citation Nr: 0708912 Decision Date: 03/27/07 Archive Date: 04/09/07 DOCKET NO. 05-10 353 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Whether the appellant meets the basic eligibility requirements for nonservice-connected pension benefits. ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The appellant had active military service from July 1981 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 Administrative decision, in which the RO denied the appellant's claim for pension benefits. The appellant filed a notice of disagreement (NOD) in July 2004, and the RO issued a statement of the case (SOC) in March 2005. The appellant filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that same month. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The appellant did not have military service during a period of war. CONCLUSION OF LAW The requirements for basic eligibility for entitlement to pension benefits are not met. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2006) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed him. As will be explained below, the claim on appeal lacks legal merit; hence, the duties to notify and assist imposed by the VCAA are not applicable in this appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Under the applicable criteria, VA shall pay nonservice- connected pension to each veteran of a period of war who meets the service requirements of this section (as prescribed in subsection (j) of this section), and who is permanently and totally disabled from non-service-connected disability not the result of his willful misconduct. 38 U.S.C.A. § 1521(a). A veteran meets the service requirements if he served in the 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 such 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.A. § 1521(j). For VA purposes, the Vietnam War Era terminated on May 7, 1975, and the Persian Gulf War commenced on August 2, 1990. 38 U.S.C.A. § 101(29), (33); 38 C.F.R. § 3.2(f)(i). The appellant's Form DD-214 shows that he had active military service from July 1981 to March 1982. Based on these dates of service, the appellant's documented period of active military duty occurred entirely during peacetime, between the Vietnam War Era and the Persian Gulf War, without one or more days of his service overlapping either recognized wartime era. In accordance with the governing legal authority, payment of VA nonservice-connected pension benefits may only be made to veterans of a period of war. Although the general rule requires that a veteran serve for a period of 90 days or more during a period of war, the exceptions to this rule would still allow payment of nonservice-connected pension to any individual who had at least 90 days of active military duty, during which there was at least one day which overlapped with a recognized wartime period. The appellant does not have one or more days of active military service during a recognized period of war. Accordingly, he is ineligible for an award of VA nonservice-connected pension benefits as a matter of law. Under these circumstances, the Board finds that the claim on appeal must be denied. Where as here, the law, and not the facts, is dispositive, the claim must be denied because of the absence of legal merit, or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As the appellant does not meet the basic eligibility requirements for nonservice-connected pension benefits, the appeal is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs