Citation Nr: 18151375 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-15 819A DATE: November 19, 2018 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The Veteran did not serve in the active military, naval, or air service during a period of war. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected pension have not been met. 38 U.S.C. 1501, 1521 (2012); 38 C.F.R. 3.2, 3.3, 3.314 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from May 23, 1958 to June 30, 1961. The Veteran did not serve in the Republic of Vietnam. Entitlement to nonservice-connected pension benefits The Veteran seeks entitlement to nonservice-connected pension benefits. VA law authorizes the payment of a nonservice-connected pension benefits to a wartime Veteran who has the requisite service and who is permanently and totally disabled. As a threshold requirement for nonservice-connected pension benefits, the Veteran must have had wartime service. Specifically, in order for a veteran to be entitled to pension benefits, the veteran must have served in the active military, naval or air service for 90 days or more during a period of war, or commencing or ending during a period of war. 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). The specific dates encompassing the “periods of war” are defined by statute. 38 U.S.C. § 101 (11) (2012). The term “period of war” for pension purposes 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. 38 U.S.C. 1501 (4); 38 C.F.R. 3.2. The record establishes the Veteran had active service from May 23, 1958 to June 30, 1961. This period falls between the Korean conflict (June 27, 1950 to January 31, 1955) and the Vietnam era (February 28, 1961 to May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 to May 7, 1975). See 38 C.F.R. 3.2. The Board notes that the Veteran had service from February 28, 1961 to June 30, 1961; however, none of the evidence of record suggests that this service occurred in the Republic of Vietnam. In the Veteran’s March 2014 Notice of Disagreement (NOD), the Veteran indicated that, while he did not serve in Vietnam, he did service in a combat zone during his period of service. He stated that France was at war with Algeria during his period of service and that he served in a combat zone in France in 1959. He stated that he suffered injuries during his service in France and he argued that VA was basing its decision solely on the war in Vietnam but “if a soldier is injured in another area, is he not entitled to submit a claim if he is injured?” The Veteran requested that VA consider his reports that he was injured in 1959 in a combat zone in the nation of France. Unfortunately, with regard to entitlement for nonservice-connected pension, the criteria for basic entitlement for pension requires that the Veteran have active wartime service based upon periods of war as determined by Congress and VA regulation. See 38 C.F.R. 3.2. The Board acknowledges the Veteran’s assertion that his service in Army in France during a war in France may have placed the Veteran in a combat zone and that he may have sustained injuries that warrant service connection; however, such service does not meet the criteria as wartime service for nonservice-connected pension. (The Board notes that the location of the Veteran’s service is not dispositive regarding claims for direct service connection for disabilities sustained during his active service). While an extended period has been granted to for Veterans that served in Vietnam from February 28, 1961 to August 4, 1964, the Board is bound by the definition of a “period of war” under VA regulation. See 38 C.F.R. 19.5. In this case, the law is dispositive, and the Veteran’s nonservice-connected pension claim must be denied as a matter of law because he did not have the requisite wartime service. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). This finding is in no way intended to diminish the value or significance of the Veteran’s service, but is rather required to fulfill the Board’s duty to ensure compliance with the applicable statutes and regulations. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel