Citation Nr: 20003587 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-44 706 DATE: January 16, 2020 REMANDED Entitlement to survivor’s pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1959 to August 1963 and received an honorable discharge. He then had a second period of service from March 1965 to February 1968, which resulted in a separation under other than honorable conditions. It has previously been determined that the character of the Veteran’s discharge is a bar to VA benefits based on the latter period of service. See Board of Veterans’ Appeals (Board) decision dated in June 2019. The Veteran died in March 2006. The appellant is his surviving spouse. This matter comes to the Board on appeal from a July 2015 decision issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. The issue on appeal was previously before the Board in June 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board.  Entitlement to survivor's pension benefits is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford her every possible consideration. Death pension benefits are generally available for surviving spouses as a result of a veteran’s non-service-connected death. 38 U.S.C. § 1541(a). An appellant is entitled to such 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. 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 a requisite period of wartime service. The appellant contends that she is entitled to a survivor’s pension. As set forth above, the Veteran’s period of service from August 1959 to August 1963 is the only period upon which the appellant’s entitlement to benefits can potentially be premised. In order for pension benefits to be payable for that period, it must be shown that the Veteran “served in the Republic of Vietnam” sometime between February 28, 1961 and his separation from service in August 1963. The Board notes that, in January 2019, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Federal Circuit explained that when the Agent Orange Act was passed in 1991, the term “Republic of Vietnam” included its 12 nautical mile territorial sea. Notably, the term “Republic of Vietnam” was added to 38 U.S.C. § 101(29) in January 1997. As such, based on the Federal Circuit’s reasoning, the term as used in 38 U.S.C. § 101(29) would likewise include the 12 nautical mile territorial sea in its definition. In the present case, it is not clear from the evidence whether the Veteran served aboard a ship that transited the 12 nautical mile sea of the Republic of Vietnam during the period from February 28, 1961 to August 1963. A remand is warranted for further factual development. This matter is REMANDED for the following action: 1. Contact the appropriate records repositories and request that research be conducted to determine whether the Veteran served within the 12 nautical mile territorial sea of Vietnam during the period from February 28, 1961 to August 1963, to include while aboard the USS Fred T. Berry, the USS Springfield, and/or the USS Arcadia. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant should be issued a supplemental statement of the case. Allow an appropriate period of time for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.