Citation Nr: 0727356	
Decision Date: 08/31/07    Archive Date: 09/11/07

DOCKET NO.  04-40 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to non-service connected disability pension.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

R. Morales, Associate Counsel




INTRODUCTION

The veteran served on active duty from August 1960 to August 
1962.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a January 2004 administrative decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia which denied the veteran's claim for non-
service connected pension.


FINDING OF FACT

The veteran did not serve during a period of war.


CONCLUSION OF LAW

The basic eligibility requirements for nonservice-connected 
disability pension benefits are not met. 38 U.S.C.A. § 1521 
(West 2002); 38 C.F.R. § 3.2 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Claim for Non-Service Connected Disability Pension

The law limits the payment of nonservice-connected pension 
benefits to veterans who are permanently and totally disabled 
from a nonservice-connected disability that is not the result 
of willful misconduct and who have 90 days or more of service 
during a period of wartime.  38 U.S.C.A. § 1521.  This 
benefit is limited to veterans who have the requisite active 
wartime service.  Here, the veteran served on active duty 
from August 1960 to August 1962.  There is no recognized 
period of war between the end of the Korean Conflict (January 
31, 1955) and the beginning of the Vietnam Era (August 5, 
1964).  38 C.F.R. § 3.2.  As a matter of law, because the 
veteran does not have the requisite service during a period 
of war, he is not entitled to nonservice-connected pension 
benefits and his appeal is denied on the basis of the absence 
of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).  Moreover, as the law is determinative, duty to 
notify and assist provisions are not applicable to this 
claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).

ORDER

Entitlement to nonservice-connected disability pension 
benefits is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs