Citation Nr: 21071851 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-22 895A DATE: December 1, 2021 ORDER Entitlement to nonservice-connected VA death pension benefits is denied. FINDING OF FACT The Veteran did not serve in the active military, naval, air, or space service during a period of war. 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 served in the United States Army from February 1955 to February 1957. He died in August 2017. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran gave testimony at a hearing before the undersigned Veterans Law Judge. Entitlement to VA death pension benefits. The appellant argues that she is entitled to VA death pension benefits, because the Veteran tried to enlist in the United States Army on January 31, 1955, but, after waiting in line, he was told at midnight that "they closed shop" and he had to come back the next day. See Hearing Transcript (November 2021). The Board concludes that, because the Veteran had no wartime service, the claim of entitlement to nonservice-connected VA death pension 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). 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" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. § 1501(4); 38 C.F.R. § 3.2. The Korean conflict is defined as the period beginning on June 27, 1950, and ending 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, inclusive, in the case of a veteran who actually served in the Republic of Vietnam during that period; or beginning on August 5, 1964 and ending on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2(f). With regard to the necessary service requirements, the veteran must have served in the active military, naval, air, or space 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). A DD Form 214 shows that the Veteran had active service in the Army from February 1955 to February 1957, and the appellant does not assert any additional active service periods. See VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (September 2017); NOD (April 2018); Form 9 (May 2018). The Veteran's active service dates fall between the Korean conflict, which ended on January 31, 1955, and Vietnam era, which began on February 28, 1961 for those who actually served in the Republic of Vietnam, and on August 5, 1964, for those who did not. See 38 C.F.R. § 3.2. The Board recognizes the appellant's argument that the Veteran attempted to enlist on the last day of the Korean conflict period, January 31, 1955. However, service requirements also include the requirement of service for 90 days or more during a period of war, which, in this case, would not have been met as the Veteran would have served on active duty for one day at the time the wartime period ended. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a). Thus, the claim must be denied because the Veteran did not have the requisite wartime service. This finding is in no way intended to diminish the value or significance of the Veteran's service or the appellant's allegations supported by medical records, but is rather required to fulfill the Board's duty to ensure compliance with the applicable statutes and regulations. To the extent the appellant is raising an argument based on equity, the Board is sympathetic, but emphasizes that it is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994) (only VA Secretary authorized to act upon requests for equitable relief). The Board further notes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 486 U.S. 414, 426 (1990)). Accordingly, as a matter of law, the claim is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.