Citation Nr: 21031602 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-16 971 DATE: May 24, 2021 ORDER Entitlement to VA survivor's benefits is denied. FINDING OF FACT Although the appellant's deceased spouse had inactive reserve service, the preponderance of the evidence is against finding that he served on active duty or otherwise had active military service. CONCLUSION OF LAW The criteria for basic eligibility for VA survivor's benefits are not met. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.7. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant's spouse died in January 1991. The appellant claims that her deceased spouse had recognized active military service with Pan American Worldwide Airways (Pan American) during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) August 2015 decision denying the appellant entitlement to VA survivor's benefits based on the finding that her spouse did not have active military service. Entitlement to VA survivor's benefits The appellant asserts that she is entitled to VA survivor's benefits based on her deceased spouse work as a pilot for Pan American during World War II pursuant to 38 U.S.C. Chapter 10 Special Groups of Veterans and that the evidence of his service she submitted is adequate to support a showing that such service should be considered active military service. See September 2015 notice of disagreement. Eligibility for VA benefits is governed by statutory and regulatory law which defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "Veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a)-(b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Generally, service in various groups, if certified as active military service by the Secretary of Defense and if a discharge under honorable condition was imposed by the Secretary, would be considered active military service for purposes of all laws administered by the VA. 38 C.F.R. § 3.7(x). This includes U.S. civilian flight crew and aviation ground support employees of Pan American and its subsidiaries and affiliates, who served overseas as a result of Pan American's contract with the air transport command and naval air transport service during the period December 14, 1941 through August 14, 1945. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows the following: (1) service of four months or more; (2) discharge for disability incurred in the line of duty; or (3) ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). Moreover, it has been held that a service department determination as to an individual's service shall be binding on the VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). The appellant has submitted copies of identification materials from the "War Department, Army Air Force, Washington, D.C." issued in July 1943 indicating that her spouse was a pilot employed by "Pan American Airways, Africa-Orient Div." and stating that he is "accompanying the Armed Forces of the United States" and, as such, is a non-combatant. She also submitted two discharge documents a discharge certificate and a WD AGO Form 53-55 demonstrating that her spouse had served as a member of the "Air Corps Enlisted Reserve (Inactive)" from July 1942 to July 1945. However, the documents submitted by the appellant do not show that her spouse's service was active duty. The discharge certificate indicates the appellant's spouse was a member of an inactive reserve unit. Moreover, his WD AGO Form 53-55 states that he "never" entered active service. Consequently, the records available demonstrate that the spouse's service was inactive reserve service. Such service is not active military service and, as such, the appellant's spouse does not have "veteran" status. Although a service member who served on inactive duty training could achieve "veteran" status by showing that he or she was injured in the line of duty during a period of inactive duty training, there is no indication that the appellant's spouse ever filed for and was awarded service connection for an injury incurred or aggravated during his inactive reserve service. Moreover, the appellant has neither contended that he had a service-related disability that was not service-connected during his lifetime nor submitted evidence to support such a contention. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). See also Mercado-Martinez v. West, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. at 470; Biggins v. Derwinski, 1 Vet. App. at 478. Consequently, the appellant's spouse cannot be considered a "veteran" for establishing entitlement to VA benefits based upon his service as shown in the service documents submitted. In response to the appellant's contentions raised in her notice of disagreement, the RO sent the appellant a letter in October 2015 advising her that, since her spouse served with Pam American overseas between December 1941 and August 1945, she needed to go to the service department to obtain an active duty determination because VA does not have the authority to make such determinations. She was advised to apply for a DD Form 214 by completing DD Form 2168 and submitting it to the appropriate address listed. Then she was told to submit the DD Form 214 (original or certified copy) to VA so it can determine her eligibility for benefits. To date, the appellant has not submitted a DD Form 214 for her spouse showing that the service department has determined that his service was active duty rather than inactive reserve duty. The Board is sympathetic to the appellant and the hardship caused by the loss of her spouse. The law, however, is dispositive of her case, and the Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In summary, based on the available evidence, the law is dispositive in this matter. As the appellant's spouse did not have the type of qualifying service required to confer eligibility for VA survivor's benefits, the appellant's claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.