Citation Nr: 1823455 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-34 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The appellant's spouse served in the National Guard. He died in February 2008; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. All records are now in these electronic systems. FINDING OF FACT The claims file does not contain evidence that the appellant's spouse had active duty service during wartime. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 1101, 1541, 1542, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.2, 3.3 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Appellant has specifically raised any procedural issues to the AOJ or the Board, even when construing the appellant's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the veteran, though at the same time giving the veteran's pleadings a liberal construction). Legal Criteria and Analysis According to 38 C.F.R. § 3.3(b)(4), improved death pension is a benefit payable to a Veteran's surviving spouse or child because of the Veteran's nonservice-connected death. Basic entitlement exists if: (a) the Veteran had qualifying service, or (b) the Veteran was, at the 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 (c) the surviving spouse or 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 and 3.24. In this case, the appellant's spouse was not receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war at the time of his death. Second, in this case, the appellant's spouse served in the National Guard, but there is no evidence that he served on active duty during a period of war. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans' benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. For the purposes of entitlement to nonservice-connected death pension benefits, a veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. §§ 3.1(d); 3.3(b)(3)(i). Additionally, qualifying service is defined as a period of war. 38 C.F.R. §§ 3.2; 3.3(b)(3)(i). The claims file includes two certificates of discharge from the National Guard of Missouri, with discharge dates of August 4, 1955, and November 26, 1956. It also contains an NGB Form 22, indicating periods of National Guard service from August 5, 1952, to August 4, 1955; and August 5, 1955 to November 26, 1956. In August 2013, the AOJ submitted a request to the National Personnel Records Center (NPRC), which responded that a record for the appellant's spouse could not be identified. In an August 2013 administrative decision, VA determined that the appellant's spouse in this case did not have any periods of active service, or service in the military. The AOJ also attempted to obtain additional evidence of military service from the appellant. See, e.g., August 2013 VA Letter. In a June 2014 letter, VA notified the appellant that further attempts to obtain records would be futile. In a June 2014 email, a VBA employee indicated that the appellant's spouse had served in the Army from August 5, 1955, to November 26, 1956. The Board finds that the preponderance of the evidence of record, including NGB Form 22 and the NPRC response, indicates that the appellant's spouse served in the Missouri National Guard, but does not indicate any active duty service. Even assuming the June 2014 email is accurate, the Board notes that the time period of August 5, 1955, to November 26, 1956, is not include in a period of war under 38 C.F.R. § 3.2. According to 38 C.F.R. § 3.2, the period for the Korean conflict ended January 31, 1955, and the Vietnam era began February 28, 1961. In this case, the appellant's spouse did not have qualifying service, and was not receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war at the time of death. Therefore, the appellant is not entitled to nonservice-connected death pension benefits. 38 C.F.R. §§ 3.1(d); 3.2(e) and (f); 3.3(b)(3)(i) and (ii). ORDER Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs