Venturella v. Gober

HOLDAWAY, Judge: The appellant, Carmelitte N. Venturella, on behalf of the minor children of herself and the veteran, appeals from the July 14, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) that denied continued entitlement to dependency and indemnity compensation (DIC). The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the BVA decision. I. FACTS Dale A. Wallace, the veteran, served on active duty in the United States Air Force (USAF) from July 1972 to December 1976. In March 1988, the veteran was fatally injured when the USAF A-10 aircraft he was piloting was destroyed in a crash. He was participating in a USAF Fighter Weapons Instructor Course. At the time, he was employed as an Air Reserve Technician and was serving as a major in the USAF Reserve. The USAF casualty report stated that the appellant was a “member on civilian TDY status.” The report also noted that “if member[’]s TDY orders read 1DY status, the member died while serving in a civilian capacity.” In October 1991, the appellant filed a claim for DIC on behalf of the minor children of herself and the veteran. In November 1991, the VA regional office (VARO) granted her claim for DIC. In January 1992, the National Personnel Records Center sent the VARO a personal data report which revealed that the appellant’s last period of active duty for training was in March 1985, and that his death “[d]id not occur during an active duty/inaetive duty training period.” In August 1992, the VARO informed the appellant that it was proposing to terminate her children's DIC because her husband’s death had not occurred during qualifying duty. By administrative decision, in December 1992, the VARO discontinued her children’s DIC benefits and found that the overpayment was due to an administrative error. The appellant filed a Notice of Disagreement in January 1993 and a substantive appeal to the Board in March 1993. The BVA determined that the appellant, on behalf of her minor children, had failed to demonstrate that the claim was well grounded because military records demonstrated that the. veteran was not on active duty, active duty for training, or inactive duty training at the time of his death. II. ANALYSIS The surviving spouse, children, or parents of a qualifying veteran who dies from a service-connected injury while in the active military service are entitled to receive DIC benefits. See 38 U.S.C. § 1310; Smith (Cynthia) v. Derwinski, 2 Vet.App. 241, 243 (1992). “The term ‘service-connected’ means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.” 38 U.S.C. § 101(16). The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); see also 38 C.F.R. § 3.6(a) (1996) (implementing regulation). Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. See Cahall v. Brown, 7 Vet.App. 232, 237 (1994). “[S]ervice department records are binding on VA for purposes of establishing service in the U.S. Armed [342] Forces.” Duro v. Derwinski, 2 Vet.App. 530, 532 (1992); see also 38 C.F.R. § 3.203. “Previous determinations [by VA] which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error,” 38 C.F.R. § 3.105(a), and “service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being on the Government),” 38 C.F.R. § 3.105(d), except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in the law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. 38 C.F.R. § 3.105 (emphasis added). The VARO received a personal data report from the National Personnel Records Center in January 1992, which stated that the veteran’s “death did not occur during an active duty/inactive duty training period.” The report is binding on the VARO and conclusively established that the veteran was not a member of the active military, naval, or air services at the time of his death. Therefore, his death was not service connected. There is simply no authority in law that would permit VA to maintain DIC payments to the veteran’s children when his death was not service connected. See 38 U.S.C. § 1310. Because the evidence establishes that there is no legal entitlement to service connection, the provisions of 38 C.F.R. § 3.105(a) and (d), that limit VA’s authority to sever service connection to eases where there is clear and unmistakable error, do not apply, and the payment of DIC benefits to the veteran’s children must be discontinued. “[W]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or lack of entitlement under the law.” Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). The BVA’s determination that the appellant’s claim was not well grounded was harmless error. See 38 U.S.C. § 7261(b); Cacalda v. Brown, 9 Vet.App. 261, 265 (1996). The Court does not have jurisdiction to consider any issues that the veteran’s family may have about entitlement to benefits that relate to his civilian status. III. CONCLUSION After consideration of the pleadings and a review of the record, the Court holds that the appellant has not demonstrated that the BVA committed either legal or factual error that would warrant reversal or remand. The July 14, 1995, decision of the Board is AFFIRMED.