Citation Nr: 1312545 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 10-47 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 17, 1956 to May 28, 1958. The Veteran died in September 1998. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDING OF FACT The Veteran's verified military service did not include any service during a period of war. CONCLUSION OF LAW The criteria for eligibility for VA death pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 1501, 1502, 1541 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.203 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the VCAA. There are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has been held not to apply to claims based on allegations that VA decisions were clearly and unmistakably erroneous. Id. It has been held not to apply to claims that turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on interpretation of the law, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Court has also held that compliance with the VCAA is not required if additional evidence could not possibly change the outcome of the case. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). During the drafting of the VCAA, Congress observed that it is important to balance the duty to assist against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. For example, wartime service is a statutory requirement for VA pension benefits. Therefore, if a veteran with only peacetime service sought pension, no level of assistance would help the veteran prove the claim; and if VA were to spend time developing such a claim, some other veteran's claim where assistance would be helpful would be delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Senator. Rockefeller). This is the case here as it applies to death pension. Death Pension Nonservice-connected disability pension may only be awarded to a veteran of a war who has qualifying service and is permanently and totally disabled. See 38 U.S.C.A. §§ 1502, 1521. A veteran is defined as 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.A. § 101(2). 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.A. § 101(24). Active duty means full time duty in the Armed Forces, other than active duty for training. 38 U.S.C.A. § 101(22). A veteran meets the service requirement if he or she served in the "active military, naval, or air service" during the following time periods: (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 ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(a), (j); 38 C.F.R. § 3.3(a)(3). To make its intent clear, Congress has also provided a definition of "period of war." For VA pension benefit purposes, the term "period of war" means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. See 38 U.S.C.A. § 1501(4). The Korean conflict has been determined to comprise the period beginning on June 27, 1950 through January 31, 1955, inclusive. 38 C.F.R. § 3.2(e). The Vietnam era has been determined to comprise the period from February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period and to extend from August 5, 1964 through May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2(f). The Persian Gulf War is defined as the period beginning on August 2, 1990 through the date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2(i). Likewise, VA shall pay pension for nonservice-connected disability or death to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in section 1521(j) of title 38, U.S. Code, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. 38 U.S.C.A. § 1541. For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge, without verification by the service department. VA may accept such evidence if it is issued by the service department and includes the needed information as to length, time and character of service and VA finds that it is genuine and includes accurate information. If the evidence the claimant submits does not meet these requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203. The Veteran's service records, including his DD Form 214 as well as an NA Form 13038 from the National Archives and Records Administration, show active, honorable service for the period from July 17, 1956 to May 28, 1958. This service has been verified as correct. Further, there is no evidence to the contrary. The Veteran, therefore, did not have any wartime service. The Veteran's claim for pension was denied on this basis during his lifetime on several occasions. Likewise, the appellant's claim for death pension must be denied due to the lack of any service by the Veteran during a period of war. To the extent that the law is dispositive of an issue on appeal, this claim lacks legal merit. Sabonis v. Brown, 6 Vet. App. 427, 430 (1994). Accordingly, the Board has no recourse but to deny the claim for nonservice-connected death pension benefits. ORDER Entitlement to nonservice-connected death pension benefits is denied. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs