Citation Nr: 1803313	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  13-28 987	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to nonservice-connected death pension benefits.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel




INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).  

The Veteran served on active duty from May 1960 to May 1962.  The Veteran died in January 2006.  The appellant is his surviving spouse.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, from the Milwaukee Pension Management Center.  Previously a January 2017 Board videoconference hearing was scheduled in the matter, however, the appellant  did not appear.  The appellant has not since requested that the hearing be rescheduled.  The original hearing request is therefore deemed withdrawn.  38 C.F.R. § 20.704(e) (2017).  
 

FINDING OF FACT

The Veteran had active military service from May 4, 1960 to May 16, 1962.  He did not have service in the Republic of Vietnam at any point.


CONCLUSION OF LAW

The criteria for basic eligibility for nonservice-connected death pension benefits are not met.  38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Pension is a benefit payable by VA to veterans of a period of war who meets the service requirements prescribed in section 1521(j) because of a disability, or to survivors of such veterans.  38 U.S.C.A. § 1541(a) (2012); 38 C.F.R. § 3.3(b)(4) (2017).  Basic entitlement exists if (i) the Veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. §§ 3.23.  See 38 U.S.C. §§ 1502, 1521(j) (2012); 38 C.F.R. § 3.3 (a) (2017).  VA will consider a veteran to be permanently and totally disabled if he is a patient in a nursing home for long-term care due to disability, or determined to be disabled for Social Security Administration purposes.  In addition, a disability pension is payable to each veteran who served in the active military, naval, or air service for 90 days or more during a period of war and who is 65 years of age or older.  See 38 U.S.C.A. § 1513. 

The Veteran had active duty service in the U.S. Army as indicated on his Form DD-214 (Report of Separation from Service) from May 4, 1960 to May 16, 1962.  The service department's determination is binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

The applicable time periods that are recognized periods of war which are in proximity to when the Veteran served consist of the Korean conflict from June 27, 1950 through January 31, 1955, and the Vietnam Era from August 5, 1964 to May 7, 1975.  The Vietnam Era also includes the period beginning on 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.  See 38 C.F.R. § 3.2. 

In this case, the Veteran did not have active military service during the above identified recognized periods of war for purpose of benefits entitlement.  He essentially had service between two recognized periods of war.  There is no indication further that he ever had service in the Republic of Vietnam as of February 28, 1961 under which circumstances there would also be recognized wartime service.  In the absence of verified wartime service in this case, the appellant is ineligible to receive nonservice-connected death pension benefits. The Board recognizes and is grateful for the Veteran's military service.  At the same time though the regulatory requirements for pension benefits are dispositive as to the benefit sought. 

Because the criteria prescribed for basic eligibility for nonservice-connected pension have not been met, recovery of this benefit is precluded under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 


ORDER

The claim for nonservice-connected death pension benefits is denied.   



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs