Citation Nr: 18160466
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-31 256A
DATE:	December 26, 2018
ORDER
Entitlement to death pension benefits is denied.
FINDING OF FACT
1. The appellant neither served at least 90 days on active duty during a period of war, nor did his service period include 90 consecutive days beginning or ending during a period of war, nor did he serve on active duty for an aggregate of 90 days or more in two or more separate periods during a period of war.  
2. The appellant’s bilateral flatfoot disability, which was the basis of his medical discharge, was not incurred in the line of duty, pre-existed active duty service, and was not aggravated beyond its natural progression by the appellant’s active duty service.  
CONCLUSION OF LAW
The criteria for death pension benefits have not been met.  38 U.S.C. §§ 101, 1501, 1521, 1541; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from August 9, 1966 to September 9, 1966.  The Veteran died in December 2013 and was not service connected for any disabilities at the time of his death.  The appellant is the Veteran’s surviving spouse.  
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant entitlement to death pension benefits.  
Entitlement to death pension benefits is denied.
The appellant asserts she is entitled to a death pension due to the fact that the Veteran was medically discharged after 32 days in the United States Marine Corps for having flat feet.  She contends that because the Veteran’s discharge was honorable, and that he would have completed 90 days of service had he not been medically discharged, she should be entitled to a pension benefit.  After a sympathetic review of all the evidence of record, the Board finds the preponderance of the evidence is against the appellant’s claim for entitlement to death pension benefits.  
Death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death.  38 U.S.C. §§ 1521, 1541; 38 C.F.R. § 3.3.  To establish basic eligibility the evidence must show that the Veteran (1) served for at least 90 days during a period of war; or (2) served during a period of war and was discharged for a service-connected disability. 38 C.F.R. § 3.3.  
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.  The Vietnam War period, is 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)
As noted above, and as recorded on his Certificate of Release of Discharge from Active Duty (Form DD 214), the Veteran served only 32 days on active duty service in the United States Marine Corps.  As he does not have at least 90 days of service during a period of war, the is only eligible for death pension benefits if the appellant was discharged from active duty for a service-connected disability.   
The Veteran’s service treatment records indicate he was noted with flat feet prior to his induction into service.  During basic training, his disability began bothering him and he was frequently at sick call.  At that time, it was recommended that he be medically discharged from active service.  
The Veteran’s medical board took testimony from the Veteran which indicated that he had always had flat feet, and that he had an unsuccessful surgery to correct the disability at the age of 10.  After a review of the evidence, the medical board determined that the Veteran’s bilateral flatfoot disability was not incurred in the line of duty, that it existed prior to his entry into service, and that it was not aggravated by the Veteran’s service.  The Board is bound by this determination absent evidence that it is patently inconsistent with the laws administered by VA.  38 C.F.R. § 3.1(m).  The Veteran did not dispute these findings at the time.  
The appellant has not contended that the Veteran’s disability was incurred during his active service or permanently aggravated beyond its normal progression by his active duty service, and the record contains no indication that the disability was aggravated beyond its normal progression by active duty service.  Further, even if this were contended, absent evidence that a line of duty determination is patently inconsistent with the requirements of laws administered by the VA, VA is bound by the service department’s line of duty determination.  38 C.F.R. § 3.1(m).  
The Board is sympathetic to the appellant’s loss of her husband and recognizes that he served his nation honorably; however, there is no legal basis for death pension benefits in this case.  38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.3, 3.6.  Considering this, the Board concludes that entitlement to death pension benefits is not warranted in this case and the appellant’s claim must be denied.  
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Kleponis, Associate Counsel 

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