Citation Nr: 1302087 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-36 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to nonservice-connected death pension. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active and reserve service from February 1956 to February 1962. The Veteran died in May 1976. The appellant is the Veteran's surviving child. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A statement of the case was issued in April 2010, which also addressed the issues of entitlement to dependency and indemnity compensation, and accrued benefits. In August 2011, the appellant limited his appeal to the issue listed on the title page of this action. In his substantive appeal, the appellant requested a hearing before a Veterans Law Judge. An April 2011 letter informed him that his hearing was scheduled for May 2011. However, in correspondence from the appellant's representative received in May 2011, the appellant cancelled his Board hearing request. The issue of entitlement to helpless child benefits has been raised by the record in December 2009, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran did not have active service during a period of war, nor did he serve in Vietnam. CONCLUSION OF LAW There is no legal entitlement to nonservice-connected death pension benefits. 38 U.S.C.A. §§ 101, 107, 1541 (West 2002); 38 C.F.R. §§ 3.3, 3.40 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Regardless, the appellant was provided with appropriate notice by a letter dated in August 2009 and all relevant evidence has been obtained, including the Veteran's service personnel records. Analysis The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive for veterans who served in Vietnam; otherwise, the Vietnam era began August 5, 1964. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f). Death pension is monthly benefit payable by VA to a veteran's surviving spouse or child because of a veteran's nonservice-connected death. Basic entitlement exists if the veteran had qualifying wartime service (90 days or more during a period of war or was released from such wartime service before having served 90 days for a disability adjudged service-connected); or the veteran at the time of death was receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war and the surviving spouse or child meets the net worth requirements specified by regulation and has an annual income not in excess of the applicable maximum annual pension rate specified by regulation. 38 C.F.R. § 3.3(b)(4). The appellant asserts entitlement to nonservice-connected death pension benefits. He essentially contends that the Veteran's service should entitle him to nonservice-connected pension benefits. The Veteran's service record shows that he had active and reserve service from February 28, 1956 to February 19, 1962. These dates of service are not disputed by the appellant. The Veteran had no compensable service-connected disabilities at the time of his death in May 1976. The sole question before the Board is whether the appellant has established threshold eligibility for a nonservice-connected death pension. Eligibility for VA death pension benefits generally requires an initial showing that the claimant is the surviving spouse or child of a veteran who served on active duty for at least 90 days during a period of war. Here, the evidence fails to show that the Veteran's period of service was during a period of war. As noted, the "Vietnam Era" (for those veterans who did not serve in that country) did not begin until August 5, 1964. The Veteran in this case did not serve in Vietnam. As a matter of law, the Veteran did not serve during a period of war. The appellant's claim for nonservice-connected death pension benefits must accordingly be denied, since he does not meet the threshold requirement for eligibility for that benefit. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs