Citation Nr: 1815697	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  14-07 147	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from July 1960 to November 1962.  He died in January 2011.  The appellant is the Veteran's widow.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

In May 2015, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  During the hearing, the appellant's representative indicated that other claims may be raised; however, no further claims have been raised.  In an October 2016 appellate brief, the representative indicated that it would provide no additional evidence.


FINDINGS OF FACT

1.  The Veteran served from July 1960 to November 1962.

2.  The Veteran did not serve in Vietnam during that time period.

3.  The Veteran did not serve during a period of war.



CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension benefits have not been met.  38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.2, 3.3 (2018).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant seeks nonservice-connected death pension benefits, based on the Veteran's service.  

Death pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death.  38 U.S.C. § 1541(a).  An appellant is entitled to these benefits if the veteran served for 90 days or more, part of which was during a period of war; or, if the veteran served during a period of war and was discharged from service due to a service-connected disability or had a disability determined to be service-connected that would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements.  38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). 

A "period of war" for pension purposes currently includes the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, and the Persian Gulf War.  38 U.S.C. § 1501(4); 38 C.F.R. § 3.2.  Under 38 C.F.R. § 3.2(f), the Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 if the Veteran served in the Republic of Vietnam during that time.  If the Veteran did not serve in Vietnam, the period is from August 5, 1964 to May 7, 1975.

Per the July 2013 response to a request for information, the Veteran served from July 1960 to November 1962, and there was no evidence that he served in the Republic of Vietnam.  During the May 2015 Board hearing, the appellant did not indicate that the Veteran served in Vietnam.  At most, she indicated service in Camp Lejeune and onboard a ship.

Given that the Veteran did not serve in Vietnam, the applicable period of war is from August 5, 1964 to May 7, 1975.  As such, his service (from July 1960 to November 1962) was not during a period of war.  Therefore, as the Veteran did not serve during a period of war, nonservice-connected death pension benefits are not possible.  

The Board is sympathetic to the appellant's claim; however, there is no legal basis for nonservice-connected death pension.  38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.6; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The appellant's claim for nonservice-connected death pension benefits is denied.


ORDER

Entitlement to nonservice-connected death pension benefit is denied.



____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs