Citation Nr: 21074495 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-36 367A DATE: December 15, 2021 ORDER Entitlement to death pension benefits is denied. FINDING OF FACT The appellant's spouse is not shown to have served on active duty during a period of war as recognized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for basic eligibility for death pension benefits have not been met. 38 U.S.C. § § 101, 1503, 1541, 5312; 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.50, 3.271, 3.272. REASONS AND BASES FOR FINDING AND CONCLUSION The service member, who is the appellant's spouse, served in the Army National Guard of Alabama from June 1959 to March 1965, to include a period of active duty for training (ACDUTRA) from June 1959 to December 1959. Unfortunately, he died in May 2017. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 determination issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the appellant and T.J. testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. At the July 2021 Board hearing, the appellant presented testimony with respect to issues of entitlement to service connection for non-hodgkin's lymphoma, entitlement to service connection for the cause of death, and entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318. Those issues will be the subject of a separate Board decision. Pension is a separate issue from compensation. Entitlement to death pension benefits The appellant seeks to establish entitlement to death pension benefits. VA death pension benefits are payable when, among other criteria, the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a), 1541(a); 38 C.F.R. § 3.3(a)(3). A veteran meets the service requirements of that section if he served in active military, naval, or air service: (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)(3). The term "veteran" is defined as "a person who served in the active military, naval, or air service." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). "Active duty" generally means "full-time duty in the Armed Forces, other than active duty for training." 38 U.S.C. § 101(21)(A). VA presently recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101; 38 C.F.R. § 3.2. In this case, the appellant's spouse does not meet the wartime service requirement. The Korean War era ended on January 31, 1955 and the Vietnam War era began on August 5, 1964, except for those who served in the Republic of Vietnam between February 28, 1961 and May 7, 1975, in which case, the Vietnam War era began on February 28, 1961. See 38 U.S.C. § 101(9), (29); 38 C.F.R. § 3.2(e), (f). As noted previously, the appellant's spouse served in the Army National Guard of Alabama from June 1959 to March 1965, to include a period of ACDUTRA from June 1959 to December 1959. Aside from the fact that his service does not qualify as "active duty," his period of ACDUTRA took place subsequent to the Korean War era, and prior to Vietnam War era. Moreover, there is no indication that the appellant's spouse served in the Republic of Vietnam, and the record does not otherwise show that he was disabled or died from a disease or injury incurred or aggravated in line of duty during his National Guard service. In order for the appellant to qualify for death pension benefits, the evidence must establish that the appellant's spouse served during a period of war. In this case, the evidence clearly show that he did not serve on active duty during a period of war as recognized by VA. In light of the foregoing, there is no basis to find that the appellant's spouse had recognized service for purposes of establishing basic eligibility for VA death pension benefits. Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 are not for application. Therefore, this appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). J. W. Francis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.