Citation Nr: A25035269 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210622-167457 DATE: April 16, 2025 ORDER Entitlement to accrued benefits is denied. Entitlement to survivors' pension benefits is denied. REMANDED Entitlement to dependency and indemnity compensation (DIC) is remanded. FINDINGS OF FACT 1. At the time of his death, the Veteran was receiving VA compensation; he did not have a claim pending before VA when he died. 2. The Veteran did not serve in the active military, naval, or air service during a period of war. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.31, 3.100. 2. The criteria for entitlement to survivors' pension benefits have not been met. 38 U.S.C. §§ 101, 1501, 1541; 38 C.F.R. §§ 3.2, 3.3, 3.23. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to September 1982. He died in July 2020. The appellant is his surviving spouse. The rating decision on appeal was issued in November 2020. In June 2021, the appellant opted into the Appeals Modernization Act (AMA) review system by filing VA Form 10182, Decision Review Request: Board Appeal. She selected the "Evidence Submission" lane. This allowed her 90 days to submit pertinent evidence. She acknowledged that her appeal would be based on all evidence submitted to VA as of 90 days after the date of that election. The Board cannot hold a hearing or accept into the record additional evidence in its review. 1. Entitlement to accrued benefits VA law provides that, upon the death of a Veteran, a surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of the Veteran's death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. By statute, the claimant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Analysis The appellant contends that she is entitled to accrued benefits. Here, the record shows that, when he died in July 2020, the Veteran did not have any claim pending before VA. He last filed a claim in May 2018, and VA adjudicated the claim in a June 2018 rating decision (which the Veteran did not appeal). Therefore, at the time of his death, there were no benefits to which the Veteran was entitled that were due and unpaid. As the criteria for accrued benefits are not met, the appellant's claim has no legal merit and must be denied. 2. Entitlement to survivors' pension benefits Survivor's 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. 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 meets the service requirements to receive nonservice-connected pension benefits if he or she 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 such 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 "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 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). Analysis The appellant contends that she is entitled to survivor's pension. However, the Board concludes that basic eligibility for survivor's pension benefits have not been established as the Veteran did not have qualifying wartime service. Here, the record reflects that the Veteran served on active duty from July 1975 to September 1982. As noted above, 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. As the Veteran's period of active service did not begin until July 1975, two months after the end of the Vietnam war, the Board finds that the Veteran did not have wartime service during the Vietnam war era. The Persian Gulf War era is defined as the period beginning August 1990 through a date to be prescribed. The Veteran's period of active service ended September 1982, eight years prior to the beginning of the Persian Gulf conflict. Thus, the Veteran's active service from July 1975 to September 1982 is considered peace time service. The appellant has not put forth any other argument or contentions regarding the Veteran's service. As such, the Board finds that the Veteran did not have active service during a period of war for VA purposes. Consequently, as the Veteran did not have the requisite wartime service, the claim for survivors' pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The appellant contends that she is entitled to DIC benefits. The Veteran died in July 2020. At the time of his death, he was service connected for right wrist and right upper extremity disabilities. In October 2020, the appellant submitted VA Form 21-534EZ, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). In determining whether the disability that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310(a). In a November 2020 decision, the AOJ denied the DIC because there was no evidence to show that the Veteran's death was related to military service. However, the Board notes that the Veteran's death certificate is not of record. As such, the Board is unable to determine whether the Veteran's service-connected disabilities were the principal or contributory cause of his death. See 38 C.F.R. § 3.312(a). The Board finds that VA did not fulfill its duty to assist in obtaining a copy of the Veteran's death certificate, and therefore remands the claim for correction of the pre-decisional duty to assist error. The matter is REMANDED for the following action: With any necessary assistance from the appellant, obtain the Veteran's death certificate consistent with the procedures outlined in 38 C.F.R. § 3.159(c)(1). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.