Citation Nr: 1754130	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-15 234	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to status of a Veteran for purposes of establishing eligibility for VA compensation benefits.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

J. Meyer, Associate Counsel


INTRODUCTION

The appellant served in the U.S. Merchant Marines from April 1965 to August 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In a May 2017 video-hearing, the appellant testified before the undersigned Veterans Law Judge at the RO, and a transcript of the hearing is of record.  


FINDING OF FACT

The appellant served in the U.S. Merchant Marines from April 1965 to August 1967.


CONCLUSION OF LAW

The criteria for establishing status as a Veteran for the purpose of eligibility for VA compensation benefits are not met.  38 U.S.C. § 101 (2012); 38 C.F.R. § 3.7 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant asserts that he is entitled to Veteran status for purposes of establishing eligibility for VA compensation benefits as a result of his service in the U.S. Merchant Marines.  

Generally, in order to establish basic eligibility for VA disability compensation, it must first be determined if the appellant is a "Veteran," as defined by statutory and regulatory laws.  A "Veteran" is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C. § 101(2); see 38 C.F.R. § 3.1(d).  The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty.  38 U.S.C. § 101(24).

However, under Pub. L. No. 95-202, § 40, 91 Stat. 1433, 1449-50 (1977), service of American Merchant Marines in Oceangoing Service, as well as Civil Service crew members aboard U.S. Army Transport Service and Naval Transportation Service vessels, only during the period from December 7, 1941 to August 15, 1945, is considered "active duty for the purposes of all laws administered by the Secretary of Veterans Affairs."  See 53 Fed. Reg. 2775 (1988); see also 38 C.F.R. § 3.7(x)(15); Pacheco v. West, 12 Vet. App. 36, 37 (1998). 

In this case, the appellant is not entitled to Veteran status as his service in the U.S. Merchant Marines does not constitute qualifying "active military, naval, or air service" under 38 U.S.C. § 101.  

Specifically, the evidence of record demonstrates that the appellant served in the U.S. Merchant Marines from September 1965 to August 1967.  Further, the appellant does not assert, and the evidence of record does not otherwise support finding that he had any other period(s) of military service.  In fact, at his May 2017 hearing, the appellant denied having served aboard any other military vessel.  
Therefore, given that the appellant served in the U.S. Merchant Marines after August 15, 1945, his period of service is not considered active duty.  In cases such as this, where the law and not the evidence is dispositive, the claim is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

In arriving at this conclusion, the Board acknowledges the appellant's assertions that he is entitled to status as a Veteran based upon the Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, § 402 (November 11, 1998).  Nevertheless, the Board finds that under this Act, certain service of Merchant Mariners between August 16, 1945, and December 31, 1946, is also deemed qualifying service for purposes of burial and interment benefits, but not for purposes of VA compensation.  See 38 U.S.C.A. § 11201, 11202 (2012).  Therefore, the appellant's service in the Merchant Marines is not considered active duty service for the purposes of VA compensation disability benefits.  

Additionally, the Board recognizes the appellant's assertion that he should be entitled to compensation disability benefits given that certain WWII Veterans, including his brother, are entitled to benefits for similar service in the Merchant Marines.  However, to the extent that the appellant is raising an argument of equity, the Board is bound by the laws and regulations and is without authority to grant benefits on an equitable basis.  See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426   (1990)].  Thus, the Board is constrained to apply the law as Congress has created it and cannot extend benefits out of empathy for a particular claimant.

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  However, the notification and assistance provisions are not applicable here, as the appellant's claim cannot be substantiated as a matter of law.  See Sabonis, 6 Vet. App. at 430 (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).


ORDER

Entitlement to status as a Veteran for purposes of establishing eligibility for VA compensation benefits is denied.




____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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