Citation Nr: 18141935 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-44 033A DATE: October 11, 2018 ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDING OF FACT 1. The Veteran served in the United States Naval Reserves from November 1953 to March 1955; he was in training duty status between May 1954 to June 1954. 2. The Veteran served on active duty in the United States Air Force from March 1955 to December 1958. 3. The Veteran is not shown to have had any active service during a period of war. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 1541, 5107 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.314 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1955 to December 1958. He died in February 1997. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a May 2013 decision. A hearing before the Board was scheduled for May 2017. Notice of the hearing was sent to the address provided by the Appellant and was not returned as undeliverable; the regularity of the mail is presumed. The Appellant failed to appear and thus, there are no outstanding hearing requests of record. Entitlement to VA death pension The question before the Board is whether the Appellant has established threshold eligibility for VA nonservice-connected death pension benefits. The law authorizes the payment of nonservice-connected disability pension to a Veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. §§ 1502, 1521. The Secretary 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 38 U.S.C. § 1521(j) 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. § 1541. In order to establish basic eligibility for VA death pension benefits to the surviving spouse of a Veteran, the Veteran must have had the requisite service. 38 U.S.C. § 1541(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran has met the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a). 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 or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101 (24); 38 C.F.R. §§ 3.6 (a)-(d). 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. 38 U.S.C. § 1501 (4); see also 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. § 3.2; see also § 3.3(a)(3) and (b)(4)(i). A review of the record shows that the Veteran served in the United States Naval Reserves from November 1953 to March 1955. He was in training duty status between May 1954 and June 1954, which does not constitute active duty. The Veteran then served on active duty in the United States Air Force from March 1955 to December 1958. The Veteran did not serve 90 days or more during a period of war. 38 U.S.C. § 101; 38 C.F.R. § 3.2. As the Veteran did not have any qualifying wartime service, his surviving spouse does not meet the basic eligibility requirements for VA nonservice-connected death pension benefits. In this case, the law is dispositive. Accordingly, her claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). While the Board is sympathetic to the Appellant, the Board is bound by the laws codified in Title 38 of the United States Code and Code of Federal Regulations which govern dependent’s benefits administered by the Secretary of VA. Thus, the Board must apply the law as it exists and cannot extend benefits out of sympathy for a particular claimant. See Owings, 8 Vet. App. at 23, quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel