Citation Nr: 19101261 Decision Date: 01/07/19 Archive Date: 01/07/19 DOCKET NO. 16-51 287 DATE: January 7, 2019 ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDING OF FACT The decedent did not possess the requisite active service during a period of war to allow his surviving spouse to qualify for VA nonservice-connected death pension benefits. Service connection was not in effect for any disabilities and the decedent was not receiving or entitled to receive compensation or retirement pay for a service-connected disability. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1501, 1521, 1541, 5107; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.7. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1976 to March 1979. 1. Entitlement to nonservice-connected death pension benefits The appellant contends that she should be awarded nonservice-connected death pension benefits based on the decedent’s service with the United States Army from March 1976 to March 1979. Death pension is a benefit payable in certain circumstances to a veteran’s surviving spouse because of the veteran’s nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5). A veteran meets the service requirements if he 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. In order to establish basic eligibility for VA disability pension benefits, it is required that the individual with respect to whom pension is claimed be a veteran who had active military, naval, or air service. See 38 U.S.C. §§ 101(2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. “Veteran” is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). “Active military, naval, and air service” includes active duty. “Active duty” is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). “Armed Forces” consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. A “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. VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the United States Armed Forces. Service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. The decedent’s DD Form 214 shows that he served in the United States Army from March 17, 1976 to March 16, 1979. Under 38 C.F.R. § 3.2, Congress has determined that the Vietnam Era ended on May 7, 1975, and that the Gulf War period began on August 2, 1990. Accordingly, the record does not support that the Veteran served in the active military, naval, or air service for 90 days or more during a period of war. Additionally, the record does not support, and the appellant does not suggest, that service connection was in effect for any disabilities and the decedent was receiving or entitled to receive compensation or retirement pay for a service-connected disability. The Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to his country, however it is bound by the law and regulations governing the payment of VA benefits. By law, the decedent’s service is not deemed to be service during a period of war for death pension benefits. Therefore, the Board finds that basic eligibility for nonservice-connected death pension benefits has not been established. Therefore, the preponderance of evidence is against the Veteran’s claim of entitlement to nonservice-connected death pension benefits. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel