Citation Nr: 1826331	
Decision Date: 05/01/18    Archive Date: 05/14/18

DOCKET NO.  12-25 471	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to nonservice-connected death pension benefits.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel



INTRODUCTION

The Veteran had active military service from January 1956 to December 1959 and from January 1960 to January 1962.  He died in December 2006.  The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision by the Department of Veterans Affairs (VA) Pension Management Center at the Regional Office (RO) in St. Paul, Minnesota.

In October 2016, the Veteran before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing.  A transcript of the proceeding is of record.  The Board observes that the appellant appeared to raise the issue of entitlement to service connection for the Veteran's cause of death.  However, the Board notes that this issue was previously denied in a July 2008 rating decision.  Although notified of this denial and of her appellate rights, the appellant did not appeal this decision, or submit new and material evidence within one year of the denial; therefore, this decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103.  Thus, the July 2012 SOC correctly adjudicated the issue currently before the Board.


FINDING OF FACT

The Veteran did not have qualifying wartime service for death pension purposes.


CONCLUSION OF LAW

The criteria for basic eligibility for VA death pension benefits have not been met.  38 U.S.C. §§ 1521, 1541 (West 2014); 38 C.F.R. §§ 3.2, 3.3 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Death Pension Benefits

Death pension is a benefit payable in certain circumstances to a veteran's surviving spouse because of a veteran's nonservice-connected death.  Basic entitlement exists if: (i) the veteran had qualifying service during a period of war; 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 spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not exceeding 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). 

Whether a veteran's service includes wartime service [i.e. service during a period of war] is a matter of law.  The term "period of war" is currently defined by statute and, as relevant to this case, encompasses the Korean conflict and the Vietnam era.  38 U.S.C. § 101(11).  The Korean conflict began June 27, 1950, and ended January 31, 1955.  38 U.S.C. § 101(9); 38 C.F.R. § 3.2(e).  For veterans who served in the Republic of Vietnam, the Vietnam era began February 28, 1961, and ended May 7, 1975.  38 U.S.C. § 101(29)(A); 38 C.F.R. § 3.2(f).  However, if a veteran did not serve in Vietnam, then the Vietnam era began August 5, 1964, and ended May 7, 1975.  38 U.S.C. § 101(29)(B); 38 C.F.R. § 3.2(f). 

In a case for pension benefits, the threshold issue for the Board to address is whether the Veteran had the requisite wartime service.  If that issue is answered in the affirmative, then the additional issues of net worth and income requirements will be addressed.  However, if the Veteran did not have the requisite wartime service, there is no need to proceed further, or to address any other related issue.

Here, the RO denied entitlement to death pension benefits based on the Veteran's lack of wartime service.  His period of service is not in dispute.  Service department evidence reveals the Veteran had active military service from January 1956 to December 1959 [i.e. after the Korean conflict ended on January 31, 1955] and from January 1960 to January 1962 [i.e. before the Vietnam era began for veterans who did not have service in the Republic of Vietnam].  See 38 C.F.R. § 3.2(e) and (f).  The Board has carefully reviewed the entire record and finds that there is no competent evidence to contradict the service department's determination with respect to the Veteran's periods of service.  Thus, the Board must find that he did not have qualifying service for the purposes of nonservice-connected death pension.

Moreover, there is no indication that, at the time of death, service connection was in effect for any disability, or that the Veteran was receiving or entitled to receive compensation or retirement pay for a service-connected disability.  Consequently, there is no legal basis for the appellant's claim for death pension benefits.  38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.6; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  The Board is sympathetic to her claim.  The Board is certainly aware that the VA disability system is at times a daunting and lengthy process.  However, the Board is bound by the law and without authority to grant benefits on an equitable basis.  See 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994).


ORDER

Entitlement to nonservice-connected death pension benefits is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs