Citation Nr: 21009818 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-45 907A DATE: February 23, 2021 ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDING OF FACT The Veteran did not serve in the active military, naval, or air service during a period of war. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 1541; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.203, 3.314. REFERRED During the January 2021 virtual Board hearing, the issue of entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151 was raised by the appellant’s contention that the Veteran’s death was caused by VA medical care and is referred to the Agency of Original Jurisdiction (AOJ) for initial adjudication. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1964. He also served in the Army National Guard from August 1974 to May 1978. He died in August 2018. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision and an October 2018 decisional letter by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual Board hearing was held before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript is of record. The Board notes that the appellant’s VA form 9 indicated that she only wished to appeal the issue of entitlement to a pension. The Veteran’s representative further confirmed during the virtual hearing that only the one issue is on appeal. The Board additionally notes that the appellant requests a one-time payout from the VA on the basis of hardship. However, there is no provision in the law for such in this circumstance. Entitlement to nonservice-connected death pension benefits. VA law provides that nonservice-connected death pension benefits shall be paid to the surviving spouse of a veteran who meets the requisite requirements for wartime service. 38 U.S.C. § 1541. These requirements are met if a veteran served in the active military, naval, or air service 1) for ninety days or more during a period of war; 2) during a period of war and was discharged or released from such service for a service-connected disability; 3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or 4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 C.F.R. § 3.3 (b)(4) and (a)(3). 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 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. World War II began December 7, 1941, and ended December 31, 1946, and the Korean conflict began June 27, 1950, and ended January 31, 1955. The next period of war, the Vietnam Era period, was from February 28, 1961, to May 7, 1975, for those who served in Vietnam, and from August 5, 1964 to May 7, 1975 for those who did not serve in Vietnam. 38 U.S.C. § § 101 (29); 38 C.F.R. § § 3.2 (f). Here the threshold issue is whether the Veteran had the requisite period of wartime service. The Veteran’s DD Form 214 reflects he had active duty service from April 1961 to April 1964. At the January 2021 hearing, the appellant testified that the Veteran did not have boots on the ground in Vietnam. Her testimony is consistent with the Veteran’s military personnel records which are silent for any deployment to Vietnam. Such service therefore was not during a period of war. In pertinent part, the Veteran’s active duty service fell in-between the period of war for the Korean conflict (which ended on January 31, 1955) and the Vietnam Era period for those who did not service in Vietnam (which began on August 5, 1964). 38 C.F.R. § 3.2 (f). (Continued on the next page)   While the Board is sympathetic to the appellant, it is nevertheless bound by the laws and regulations governing the administration of Veterans benefits. Because the Veteran did not have qualifying wartime service, entitlement to nonservice – connected death pension benefits is not warranted as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The claim must therefore be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.