Citation Nr: 19149092 Decision Date: 06/25/19 Archive Date: 06/24/19 DOCKET NO. 18-23 715 DATE: June 25, 2019 ORDER Entitlement to death pension (survivor’s pension) is denied. FINDING OF FACT The Veteran did not serve during a period of war. CONCLUSION OF LAW The criteria for entitlement to death pension benefits have not been met. 38 U.S.C. §§ 101, 103, 1503, 1521, 1541, 5110; 38 C.F.R. §§ 3.2, 3.3, 3.23. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1964. He passed away in October 2004. The Appellant is his surviving spouse. The Appellant is seeking VA death pension benefits as the surviving spouse of a veteran with qualifying wartime service. She filed her Application for Dependency and Indemnification, Death Pension, and Accrued Benefits in November 2017, indicating that she was seeking a claim for death pension, as well as Dependency and Indemnity Compensation. She argued that the Veteran entered active duty in June 1962 and that his terminal period of reserve obligation was in May 1968. Unfortunately, as will be explained below, it is the period of active duty that is critical to the determination of eligibility for pension. Death pension benefits are generally available for surviving spouses, as a result of the Veteran’s non-service 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, which would have justified a discharge for disability; and, if the appellant meets specific income and net worth requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3 (b)(4). Whether a veteran’s service includes wartime service is a matter of law. The term “period of war” is currently 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). 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 net worth and income requirements will then 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. The Veteran’s DD-214 show that he served on active duty from June 1962 to June 1964. There was no indication of foreign service. His military personnel record shows that the Veteran only served in the United States. Thus, the Board can conclude that the Veteran did not serve in the Republic of Vietnam. Therefore, while the Vietnam era covers a period between February 28, 1961 and May 7, 1975, the period of war applicable to the Veteran would have commenced in August 1964, after the Veteran separated from active duty. Based on service department evidence, the Veteran’s periods of active service did not fall within a period of war. As such, 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. Under these circumstances, the Board finds that the claim must be denied as a matter of law. As indicated above, while the Board sympathizes with the Appellant, the Board is bound by the law and is without authority to grant benefits on the basis of equity. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.