Citation Nr: 21000608 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-05 780 DATE: January 5, 2021 ORDER Entitlement to survivor pension benefits is denied. FINDING OF FACT The Veteran did not have wartime active duty service for purposes of entitlement to nonservice-connected survivor pension benefits. CONCLUSION OF LAW The criteria for whether the Veteran had wartime service for purposes of entitlement to nonservice-connected survivor pension benefits have not been met. 38 U.S.C. §§ 101, 1503, 1541, 5312 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.50, 3.271, 3.272 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a Member of the Arkansas Army National Guard from August 1953 to April 1955. He was discharged to enlist for active duty in the Air Force, and had active duty from April 1955 to October 1957. He was discharged to the Reserve and was a Member until August 1961. The Veteran died in September 2007. The appellant is the Veteran's surviving spouse. Entitlement to survivor pension benefits The appellant seeks entitlement to nonservice-connected survivor pension benefits. Basic entitlement to VA nonservice-connected death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime); 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 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). 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 Vietnam era and the Persian Gulf War. 38 U.S.C. § 101 (11). 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 Korean Conflict is defined as the period from June 27, 1950 through January 31, 1955. Id. In computing the 90 days required above, active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a period of war may be added together to meet the requirement for length of service. 38 C.F.R. § 3.17. "Active military, naval, or air service" only includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101 (21), (24); 38 C.F.R. § 3.6 (a), (d). Active duty for training (ACDUTRA) includes full-time duty performed by Reservists for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. 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 Board finds the claim has to be denied as a matter of law. The Veteran served honorably from April 1955 to October 1957 with United States Air Force. He also had prior service in the Arkansas Army National Guard from August 1953 to April 1955 and service in the Air Force Reserves until his discharge in July 1961. The only type of service which can be considered qualifying for survivor pension purposes is official federal active duty. As such, all periods other than the veteran’s official active duty from April 27, 1955 to October 27, 1957 are not for consideration. Therefore, the Veteran does not meet the statutory criteria of wartime service for his period of active duty. The Board is not unsympathetic to the appellant's claim. The record reflects that the Veteran served his country honorably for many years. However, the nature of his service does not meet the statutory criteria of "wartime service" for purposes of entitlement to nonservice-connected survivor pension benefits. As such, the Board   must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.