Citation Nr: 0705043 Decision Date: 02/22/07 Archive Date: 02/27/07 DOCKET NO. 04-03 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to non-service-connected death pension benefits. ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The appellant is the widow of the veteran who had active duty service from August 18, 1947 to January 23, 1948. The veteran died in November 2002. This matter comes to the Board of Veterans' Appeals (Board) from a January 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDING OF FACT The veteran had active duty service from August 18, 1947 to January 23, 1948, which does not include any service during a period of war; at the time of the veteran's death, he was not receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. CONCLUSION OF LAW The veteran's service does not meet the basic service eligibility requirements to entitle the appellant to VA non- service-connected death pension benefits. 38 U.S.C.A. §§ 101, 1541, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.159 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA notice and duty to assist letters dated in April 2003, November 2004, and August 2006 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as the letters informed the appellant of what evidence was needed to establish the benefits sought, of what VA would do or had done, what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and requested the appellant to send to VA any evidence in her possession that pertained to the claim. The Board is not aware of the existence of additional relevant evidence in connection with the appellant's claim that VA has not sought. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. The United States Court of Appeals for Veterans Claims (Court) has held that, in such cases as this appellant's, where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A review of the VA's duty to notify and assist is not necessary regarding the death pension claim because there is no legal basis for the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Death Pension The Secretary shall pay pension for non-service-connected disability or death to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in Section 38 U.S.C.A. § 1521(j), or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. 38 U.S.C.A. § 1541. The provisions of 38 U.S.C.A. § 1541 pertaining to death pension benefits require that the deceased person shall have been a veteran. The term "veteran" means 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.A. § 101(2); 38 C.F.R. § 3.1(d). Eligibility for VA pension benefits generally requires an initial showing that the veteran served on active duty for at least ninety (90) days during a period of war. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.2. The World War II period begins December 7, 1941 and ends December 31, 1946 (with an exception not applicable to this case). 38 C.F.R. § 3.2. In this case, the record shows the veteran had active duty service from August 18, 1947 to January 23, 1948, which does not include any period of wartime service. The Court has held that "service department findings are binding on the VA for purposes of establishing service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). The records do not show that the veteran had 90 days of wartime service to entitle the appellant to basic eligibility for non-service-connected pension benefits. In addition, at the time of the veteran's death, he was not receiving (or entitled to receive) compensation or retirement pay for a service-connected disability. Because the evidence of record shows that the veteran's military service does not legally qualify the appellant as eligible for VA non-service-connected death pension benefits, and the veteran was not receiving (or entitled to receive) compensation or retirement pay for a service-connected disability at the time of his death, the Board must deny the claim for death pension benefits on the basis of absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Basic eligibility for non-service-connected death pension benefits is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs