Citation Nr: 18158151 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 18-42 622 DATE: December 18, 2018 ORDER The April 26, 2017 Board decision, having been found to be clearly and unmistakably erroneous in granting entitlement to non-service connected death pension benefits, is reversed; entitlement to death pension benefits is denied. FINDINGS OF FACT 1. In a final decision dated April 26, 2017, the Board granted the appellant non-service connected death pension benefits. 2. The Veteran served on active duty from October 1959 to January 1962, and he did not serve in the Republic of Vietnam. 3. The April 26, 2017 Board decision contained legal error in that the Veteran did not have qualifying service to warrant basic entitlement for death pension benefits. 4. But for the legal error in the April 26, 2017 Board decision, the outcome would have been manifestly different and entitlement to non-service connected death pension benefits would have been denied. CONCLUSIONS OF LAW 1. The April 26, 2017 Board decision contains clear and unmistakable error (CUE) in determining that the appellant was entitled to death pension benefits. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400-1407 (2017). 2. The criteria for improved death pension benefits for a helpless child have not been met. 38 U.S.C. §§ 1503, 1542, 5103, 5312 (2012); 38 C.F.R. §§ 3.3, 3.24, 3.271, 3.272, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1959 to January 1962. He died in September 1987. The appellant is the Veteran’s son. This matter is currently before the Board on the Board’s own motion for revision or reversal on the grounds of CUE in the April 26, 2017 Board decision that, in pertinent part, granted entitlement to non-service connected death pension benefits. In a September 2018 letter, the appellant was notified of the Board’s motion, a summary of the reasons for docketing the motion, and notice of the consequences of a determination of CUE. The period to respond has elapsed. As such, due process has been satisfied. See 38 C.F.R. § 20.1407 (2017). The Board issues this decision to rule on the motion. A prior final Board decision must be reversed or revised where evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-02. All final Board decisions are subject to revision on the basis of CUE except for those decisions which have been appealed to and decided by the Court and decisions on issues which have subsequently been decided by the Court. 38 C.F.R. § 20.1400. A decision by the Board is subject to revision on the grounds of clear and unmistakable error (CUE). 38 U.S.C. § 7111(a) (2012). Review to determine whether clear and unmistakable error exists in a final decision may be initiated by the Board, on its own motion, or by a party to that decision. 38 U.S.C. § 7111(c) (2012); 38 C.F.R. § 20.1400 (2017). Here, the Board brought this motion to determine whether the April 2017 Board decision contained CUE such that the prior outcome must be reversed. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1400 -20.1407. There is no indication that the April 26, 2017 Board decision was appealed to and decided by the United States Court of Appeals for Veterans Claims or any other court. Thus, the Board finds that the motion is properly before the Board for consideration on the merits. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for CUE in a prior Board decision must be based on the record and law that existed when that decision was made. 38 C.F.R. § 20.1403; see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). To warrant revision of a Board decision on the grounds of CUE, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 U.S.C. § 7111; 38 C.F.R. §§ 20.1403, 20.1404. In the present case, the Board, on its own motion, alleges CUE in an April 26, 2017 Board decision that granted entitlement to death pension benefits. As explained above, the review for CUE in a prior Board decision is based on the record and the law that existed when that decision was made. See 38 C.F.R. § 20.1403(b). The pertinent laws and regulations at the time of the April 2017 decision were the same as they are now. Basic entitlement to VA nonservice-connected death pension benefits exists if: (i) the Veteran had qualifying service (a Veteran who served during wartime); or (ii) the Veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving child meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (b)(4). As to the requirement of wartime service, a Veteran meets the service requirements of this section if he or she served in the active military, naval, or air service (1) for ninety 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. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). Whether a Veteran’s service includes wartime service is a matter of law. The term “period of war” is defined by statute, and among other periods it encompasses the Korean conflict and the Vietnam era. 38 U.S.C. § 101 (11). The Korean conflict is defined as the period beginning June 27, 1950, and ending on January 31, 1955. 38 U.S.C. § 101 (9); 38 C.F.R. § 3.2 (e). The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. 38 U.S.C. § 101 (29) (A); 38 C.F.R. § 3.2 (f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975. 38 U.S.C. § 101 (29) (B); 38 C.F.R. § 3.2 (f). Here, the material facts are not in dispute. The Veteran served on active duty from October 1959 to January 1962. Personnel records reflect that the Veteran had foreign service in Hawaii, but that he did not serve in the country of Vietnam. A June 2012 Personnel Information Exchange System (PIES) response reflects that there is no evidence in the Veteran’s file to substantiate any service in the Republic of Vietnam. The Board, in the April 2017 decision denying entitlement to service connection for the Veteran’s death, found that the Veteran did not have in-country Vietnam service. The period of war for the Korean conflict ended on January 31, 1955, and the period of war for the Vietnam Era began on August 5, 1964, for Veterans, such as the Veteran in this case, who did not have service in Vietnam prior to that date. Thus, it is clear and unmistakable that the Veteran did not serve during a period of war. As such, as a matter of law, the Veteran, and by extension, the appellant, does not meet the threshold criteria for basic eligibility for nonservice-connected death pension benefits. 38 U.S.C. § 1541 (a); 38 C.F.R. § 3.3. The Board, in the April 2017 decision, made an error of law by analyzing whether the appellant qualified as a child of the Veteran without first addressing the threshold question of whether the Veteran had the requisite period of wartime service for basic entitlement to pension benefits. The Board assumed without explanation that the Veteran had the requisite period of service for basic entitlement to pension benefits. In light of the uncontroverted facts above, this assumption was without foundation and an error of law about which reasonable minds cannot differ. The Board also concludes that the error above manifestly changed the outcome of the case. The threshold issue to initially address in any pension case is whether the Veteran had the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of helpless child status, net worth, and income requirements will then be addressed. However, if the Veteran did not have the requisite wartime service, as in this case, there is no need to proceed further, or to address any other related issue. Here, because the Board erred in assuming the Veteran had the requisite period of wartime service for basic entitlement to pension benefits, an order granting the appellant entitlement to death pension benefits was entered. However, the Veteran did not have the requisite service to entitle the appellant to death pension benefits. As such, the award was an outcome which would have been manifestly different but for the erroneous wartime service determination. Thus, after considering the evidence of record at the time of the April 26, 2017 Board decision, the Board finds clear and unmistakable legal error in the Board’s decision that awarded entitlement to death pension benefits, as the statutory and regulatory provisions extant at the time were not correctly applied. Moreover, had the legal error discussed above not been committed, the April 26, 2017 Board decision manifestly would have denied entitlement to death pension benefits as the Veteran clearly and unmistakably did not have the requisite service for basic entitlement to such benefits. Accordingly, the April 2017 Board decision contains CUE in awarding the appellant death pension benefits. The April 26, 2017 Board decision is, therefore, reversed and entitlement to the benefit sought denied. 38 U.S.C. § 7111; 38 C.F.R. § 20.1407. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel