Citation Nr: 1335712 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09- 27 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the United States Navy from January 1984 to January 1988. He died in late-1998. The appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina, that informed the appellant that her claims for Dependency and Indemnity Compensation (DIC) and for death pension benefits, as well as accrued benefits, had been denied. In the appellant's November 2008 notice of disagreement, she averred that the Veteran had served in wartime, but also stated that he had had kidney problems. In the June 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the appellant requested a Board hearing at the RO. However, a local service representative cancelled the hearing in January 2011 and requested that a decision be made on the case. Accordingly, the request for an appellate hearing is withdrawn. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with this appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of the October 2013 Informal Hearing Presentation of the Veteran's service representative. Therein, it was pointed out that because the appellant alleged that the Veteran had kidney problems during service, this may have been a symptom of Human Immunodeficiency Virus (HIV) which progressed to AIDS and contributed to his death. Thus, the RO should have adjudicated entitlement to DIC benefits. While the August 2008 notice letter specifically informed the appellant that entitlement to DIC was denied, the notice letter did not further address entitlement to DIC benefits, but rather explained the denial of death pension benefits. As such, it is unclear whether entitlement to DIC benefits was actually initially adjudicated by the RO. If the issue of entitlement to DIC benefits was, in fact, adjudicated by the RO, the matter of whether the appellant's November 2008 correspondence also constituted a notice of disagreement to a denial of DIC must be addressed by the RO. Should the RO determine that the November 2008 correspondence does not constitute a notice of disagreement to the August 2008 denial of DIC, that matter is separately appealable. See 38 C.F.R. §§ 19.28 (2013). As such, the matters of the whether entitlement to DIC benefits was adjudicated by the RO, and the adequacy of the November 2008 correspondence for the purpose of constituting a notice of disagreement to the denial of DIC benefits, have been raised, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDING OF FACT The Veteran died in December 1998; he had active service in the United States Navy from January 1984 to January 1988, all of which was peacetime service. CONCLUSION OF LAW The appellant is not eligible for VA death pension benefits, as the Veteran did not have qualifying wartime service for such benefits. 38 U.S.C.A. §§ 1541, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.2, 3.4 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Non-Service-Connected Death Pension Benefits VA law provides that nonservice-connected death pension benefits shall be paid to the surviving spouse of a Veteran of a period of war who meets established service requirements. 38 U.S.C.A. § 1541. Under 38 C.F.R. § 3.4(1) death pension benefits are payable to a surviving spouse or child because of a Veteran's nonservice-connected death if he had qualifying service, as described in 38 C.F.R. § 3.4(a)(3)(i), (ii), (iii), or (iv) of this section. See 38 U.S.C.A. § 1541(a). Under 38 C.F.R. § 3.4(a)(3)(i), (ii), (iii), or (iv) a Veteran must have served in a period of war. Under 38 C.F.R. § 3.2(f) the Vietnam era is a period of war and begins on February 28, 1961, and ends on May 7, 1975, inclusive, in the case of a Veteran who served in the Republic of Vietnam during that period; in all other cases the period beginning on August 5, 1964, and ending on May 7, 1975. Under 38 C.F.R. § 3.2(i) the Persian Gulf War beginning date is August 2, 1990, through the date prescribed by Presidential proclamation or law. As yet, no Presidential proclamation or law has prescribed an ending period for the Persian Gulf War. Here, the Veteran's Certificate of Release or Discharge From Active Duty (DD Form 214) clearly shows that he had active service in the United States Navy from January 1984 to January 1988. This is not a period of war; rather, it is peacetime only active service. The appellant asserts that the Veteran's service should, nonetheless, entitle her to VA death pension benefits. However, under the controlling law and regulations outlined above, his service is not qualifying service for VA death pension benefits. In claims such as this, where the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board may proceed with the issue on appeal at this time without reviewing the provisions of the VCAA. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159. The United States Court of Appeals for Veterans Claims (Court) has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Court has also held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). ORDER Entitlement to death pension benefits is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs