Citation Nr: 21072433
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 13-34 280
DATE: December 3, 2021

ORDER

Entitlement to survivor pension benefits is denied.

FINDING OF FACT

The Veteran's service from December 1978 to December 1981 was not during a period of war.  

CONCLUSION OF LAW

The criteria for entitlement to survivor pension benefits have not been met. 38 U.S.C. § 1521 (2018); 38 C.F.R. §§ 3.3, 3.23 (2021).  

REASONS AND BASES FOR FINDING AND CONCLUSION

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a February 2013 decision.  The matter was remanded by the Board in September 2017 to satisfy an outstanding hearing request.  The hearing was scheduled for November 2021; the Appellant failed to appear.  Consequently, there are no outstanding hearing requests of record. 

The Appellant seeks entitlement to VA survivor's pension benefits.  A surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273.

A veteran has met the necessary service requirements if he served in 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.  

A review of the record shows that the Veteran served on active duty from December 1978 to December 1981.  The Vietnam War ended May 7, 1975, and the Persian Gulf War did not begin until August 2, 1990.   Thus, his active service for this period cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for survivor pension benefits. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.3, 3.6.  

As the Veteran did not have any qualifying wartime service, the Appellant does not meet the basic eligibility requirements for survivor pension benefits. While the Board is sympathetic to the Appellant, Congress has specifically limited survivor pension benefits to the class described above, and the Board must follow the laws 

 

and regulations regarding veterans' benefits. Accordingly, her claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. L. Wallin, 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.