Citation Nr: 20046835 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-42 128 DATE: July 13, 2020 ORDER Entitlement to nonservice-connected VA death pension benefits is denied. FINDING OF FACT The Veteran did not have qualifying wartime service for the purpose of establishing nonservice-connected death pension purposes. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected VA death pension benefits are not met. 38 U.S.C. §§ 101(29), 1521, 1541; 38 C.F.R. § 3.2, 3.3(b)(4). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service from October 1961 to October 1963. He did not serve in the Republic of Vietnam. He died in January 2015. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a February 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to VA death pension benefits The appellant argues that she is entitled to VA death pension benefits because, although the Veteran did not serve in Vietnam, his unit was available to go during the period he served. See VA 27-0820, Report of General Information (March 2015). The appellant does not assert, and the Veteran’s service records do not reflect, that the Veteran served in the Republic of Vietnam during his period of active duty. Basic entitlement to nonservice-connected death pension benefits for a surviving spouse or child of a Veteran exists if: (1) the veteran had qualifying service during a period of war under 38 U.S.C. § 1521 (j); or (2) the veteran was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; and (3) 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. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). The term “period of war” is defined by statute. Under 38 C.F.R. § 3.2(f), for veterans who served in the Republic of Vietnam the period of war began on February 28, 1961 and ended on May 7, 1975. For veterans that did not serve in the Republic of Vietnam, the period of war began on August 5, 1964 and ended on May 7, 1975. With regard to the necessary service requirements, the veteran must have served in the active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a). The Board concludes that, because the Veteran had no wartime service, the claim of entitlement to nonservice-connected VA death pension benefits must be denied as a matter of law. 38 U.S.C. §§ 101(29), 1541; 38 C.F.R. § 3.2, 3.3(b)(4). Here, the Veteran’s DD Form 214 reflects that he had active service between October 1961 to October 1963. He did not service in the Republic of Vietnam and he did have any other periods of service. As indicted above, for veterans that did not serve in the Republic of Vietnam, like the Veteran in this case, the period of war began on August 5, 1964 and ended on May 7, 1975. See 38 C.F.R. § 3.2(f). Hence, the Veteran did not have qualifying wartime service and, therefore, the appellant is ineligible for nonservice-connected VA death pension. See 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). Accordingly, as a matter of law, the claim is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.E., 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.