Citation Nr: 22049293 Decision Date: 08/30/22 Archive Date: 08/30/22 DOCKET NO. 13-27 298 DATE: August 30, 2022 ORDER Entitlement to death pension is denied. FINDINGS OF FACT 1. The Veteran died on February [REDACTED], 1993. 2. The Veteran served on active duty from July 1956 to September 1960. 3. The Veteran is not shown to have had any active service during a period of war. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 1541, 5107; 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1956 to September 1960. The Veteran passed away in February 1993. The appellant is the surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's spouse testified before the undersigned Veterans Law Judge during a May 2022 hearing. The transcript of the hearing is of record. Entitlement to death pension The appellant contends that she is entitled to VA nonservice-connected death pension benefits. The Board concludes that basic eligibility for death pension benefits has not been established as the Veteran did not have any qualifying wartime service. Death pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541 (a) and its implementing regulation 38 C.F.R. § 3.3 (b)(4). A surviving spouse is entitled to such benefits if the veteran had qualifying wartime service as defined in 38 C.F.R. § 3.3 (a)(3)(i), (ii), and (iii) and if the surviving spouse 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 and 3.24. In order to establish basic eligibility for VA death pension benefits to the surviving spouse of a Veteran, the Veteran must have had the requisite service. 38 U.S.C. § 1541 (a); 38 C.F.R. §§ 3.3, 3.314(b). 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. § 3.3 (a). The term "period of war" is defined by statute, and 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. 38 U.S.C. § 1501 (4); see also 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period). The Korean conflict is defined as the period beginning June 27, 1950 and ending on January 31, 1955. The Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam during that period. 38 U.S.C. § 101 (29)(A); 38 C.F.R. § 3.2 (f). In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964 and ending on May 7, 1975. 38 U.S.C. § 101 (29)(B); 38 C.F.R. § 3.2 (f). The Persian Gulf War era is defined as the period beginning August 1990 through a date to be prescribed. 38 C.F.R. § 3.2 (i). The record shows that the Veteran served honorably on active duty in the United States Air Force from July 1956 to September 1960. His service therefore fell between the Korean conflict (June 27, 1950 to January 31, 1955) and the Vietnam era (beginning February 28, 1961 at the earliest). There is no evidence to show that he had any other active duty service during a period of war. The record indicates that a records search was conducted at the National Personnel Records Center (NPRC) and that the Veteran's only period of active serve was the period noted above. A May 2014 letter indicated that a search had been conducted and that while the Veteran's records were fire-related, his record or a portion of the record had been recovered. Based on the recovered records, the NPRC confirmed service from July 1956 to September 1960, but no other period of service. His active service therefore did not fall during a period of war or begin or end during a period of war. The Board acknowledges the appellant's statements at the May 2022 Board hearing that the Veteran may have served in the Air Force in the 1980s. She also stated that he received a pension from the United States, though she did not know where it came from. However, the record simply does not support the conclusion that he had another period of service, including in the 1980s. As noted above, the NPRC indicated that a search was conducted, no additional records had been found and the Veteran's only period of service was the period from July 1956 to September 1960. While the Veteran's records were determined to be fire-related, the fire occurred in 1973 and would not have affected records from a subsequent period of service. Thus, the record does not support the appellant's suggestion that there may have been another period of service in the 1980s. The record also does not show that the Veteran ever applied for or received VA pension benefits or any other VA benefits. The first document in the Veteran's file is the appellant's August 2011 application for pension benefits, nearly 20 years after the Veteran's death. Moreover, even if the Veteran had a period of active service in the 1980s, which the Board is specifically not finding herein, such a period of service would not be during a period of war. Again, the Vietnam era ended on May 7, 1975 and the Persian Gulf era did not begin until August 1990. Thus, a period of service in the 1980s would not constitute qualifying wartime service. The Board also acknowledges the appellant's statements that the Veteran was injured in service. However, even for Veterans who are discharged due to disability, service during a period of war as defined above is still required in order to meet basic eligibility requirements for death pension. As the Veteran did not have any qualifying wartime service, the appellant does not meet the basic eligibility requirements for VA nonservice-connected death pension benefits. Accordingly, her claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold, 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.