Citation Nr: 21002904
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 18-20 541
DATE: January 19, 2021

ORDER

Entitlement to non-service-connected death pension benefits is denied.

FINDING OF FACT

The deceased Veteran served in the United States Army, but he did not have qualifying service during a wartime period.  

CONCLUSION OF LAW

The criteria for basic eligibility for VA death pension benefits have not been met.  38 U.S.C. §§ 101, 1521, 1541; 38 C.F.R. §§ 3.2, 3.3.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active service with the United States Army from May 1958 to November 1958, and October 1961 to August 1962.  He passed away in August 1997, and the appellant is his surviving spouse. 

In November 2020, the appellant appeared pro se, accompanied by her grandson, in a virtual hearing before the undersigned Veterans Law Judge (VLJ). 

While the Board has considered this case carefully, the deceased Veteran did not have qualifying service during a wartime.  

In order for the spouse (Appellant) to be eligible for benefits, the evidence must show that the deceased Veteran served for at least ninety days during a period of war; or served during a period of war and was discharged for a service-connected disability.  38 U.S.C. § 1521; 38 C.F.R. § 3.3; see also Martin v. Brown, 7 Vet. App. 196, 199 (1994) (“Eligibility for non-service-connected pension is conditioned on service during a period of war.”) 

The term “period of war” is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam Era, the Persian Gulf War, and any future declaration of war by the Congress.  See 38 U.S.C. § 1541; 38 C.F.R. § 3.2.

The Veteran had active service in the United States Army; however, the Veteran did not have service during a period of war, as defined in the statutes.  His service occurred after the Korean conflict but before the Vietnam Era.  Specifically, the Vietnam era began August 5, 1964 and ended May 7, 1975, for all Veterans who served anywhere.  See 38 C.F.R. § 3.2.

The Veteran’s spouse reported that her husband served in Country, in Vietnam, during the Vietnam war.  However, the documents the spouse supplied show that the Veteran served as a Civilian employee of the Army Corps of Engineers in Vietnam.  See Military Personnel Record received October 2017.  This Civilian service does not count as active military service.  The Veteran’s other active duty records do not show service in Vietnam.       

Because the Veteran did not have qualifying wartime service, entitlement to death pension benefits is not warranted as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Thus, after a review of the evidence of record, the Board finds the Veteran does not have qualifying Wartime service.  As it stands, there is no basis on which to grant the appellant’s claim for death pension benefits.  The Board is constrained to follow the specific provisions of law and lacks authority to grant benefits on an equitable basis.  See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Associate Counsel, C. Parnell

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.