Case: 20-1311 Document: 12 Page: 1 Filed: 12/17/2020
United States Court of Appeals
for the Federal Circuit
______________________
VERA PERRY,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1311
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2350, Chief Judge Margaret C.
Bartley.
______________________
Decided: December 17, 2020
______________________
VERA PERRY, Arkadelphia, AR, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Case: 20-1311 Document: 12 Page: 2 Filed: 12/17/2020
2 PERRY v. WILKIE
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
NEWMAN, Circuit Judge.
Vera Perry, the surviving spouse of Terry L. Perry, ap-
peals the decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”). The Veterans Court
affirmed the decision of the Board of Veterans’ Appeals
(“BVA”) denying Mrs. Perry’s claim for non-service-con-
nected death pension benefits and burial benefits. 1 The
Veterans Court held that service in the state National
Guard including a period of active duty for training, with-
out disability incurred or aggravated in line of duty, does
not achieve “veteran” status for these purposes.
The decision is in accordance with statute and regula-
tion and manifests no constitutional infirmity, and is af-
firmed.
DISCUSSION
Terry L. Perry served in the Wisconsin Army National
Guard from January 1977 to March 1977, including a pe-
riod of active duty for training from February 1977 to
March 1977. “[A]ctive duty for training” is defined, in rel-
evant part, as “full-time duty in the Armed Forces per-
formed by Reserves for training purposes.” 38 U.S.C.
§ 101(22); 38 C.F.R. § 3.6(c). “Medical Board examiners at
his March 1977 separation opined that enuresis and incon-
tinence existed prior to service.” Vet. Ct. Op. at *1.
Mr. Perry died in May 2014, the cause characterized as
cardiac arrest. The record does not show any claim for ser-
vice-connected disability during his lifetime, nor was any
1 Perry v. Wilkie, No. 18-2350, 2019 WL 4677503
(Vet. App. Sept. 26, 2019) (“Vet. Ct. Op.”); No. 17-26 699,
2017 WL 5254629 (Bd. Vet. App. Sept. 27, 2017) (“BVA
Op.”).
Case: 20-1311 Document: 12 Page: 3 Filed: 12/17/2020
PERRY v. WILKIE 3
service-connection claim pending at the time of his death.
Vet. Ct. Op. at *2.
A. Pension Benefits
The BVA held that Mrs. Perry was not eligible for non-
service-connected death pension benefits because Mr.
Perry did not have active duty service during a period of
war nor did he have a service-connected disability, as re-
quired by 38 U.S.C. § 1541:
§ 1541(a). The Secretary shall pay to the surviving
spouse of each veteran of a period of war who met
the service requirements prescribed in sec-
tion 1521(j) of this title, or who at the time of death
was receiving (or entitled to receive) compensation
or retirement pay for a service-connected disability,
pension at the rate prescribed by this section . . . .
The BVA held that “active duty for training” does not qual-
ify as active military, naval, or air service for death benefit
purposes unless “the individual concerned was disabled or
died from a disease or injury incurred or aggravated in line
of duty.” BVA Op. at *2 (citing 38 U.S.C. § 101(24); 38
C.F.R. § 3.6(a)). The BVA found that Mr. Perry did not at-
tain veteran status, and that he “was not service-connected
for any disability at the time of his death, and there is no
evidence that his death was in any way related to his Jan-
uary to March 1977 military service.” Id. at *3.
The Veterans Court, affirming the BVA, explained that
entitlement to non-service-connected death pension bene-
fits has certain active wartime service requirements, as
provided in 38 U.S.C. § 1521(j):
§ 1521(j). A veteran meets the service require-
ments of this section if such veteran served in the
active military, naval, or air service—
(1) for ninety days or more during a period of war;
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4 PERRY v. WILKIE
(2) during a period of war and was discharged or
released from such service for a service-connected
disability;
(3) for a period of ninety consecutive days or more
and such period began or ended during a period of
war; or
(4) for an aggregate of ninety days or more in two
or more separate periods of service during more
than one period of war.
Vet. Ct. Op. at *2–3.
The Veterans Court found “no evidence of wartime ser-
vice,” for there was no recognized period of war during Mr.
Perry’s period of active duty for training. Id. at *3. Thus
the Veterans Court held that Mrs. Perry was not entitled
to death pension benefits.
Mrs. Perry argued that the BVA erred in finding that
Mr. Perry did not have a service-connected disability. She
stated that the presumption of soundness on entering mil-
itary service should apply, and that Mr. Perry’s enuresis
and incontinence at the time of his discharge from the Na-
tional Guard could have been incurred or aggravated dur-
ing his period of active duty for training. The Veterans
Court held that the BVA did not err, for even if Mr. Perry’s
illnesses had been incurred or aggravated during his ser-
vice in the National Guard, in the absence of wartime ser-
vice Mrs. Perry was not entitled to death pension benefits,
citing 38 U.S.C. § 1521(j). Vet. Ct. Op. at *3.
Mrs. Perry argues that “every veteran should be
treated equally,” whether or not the veteran served in war-
time. Perry Br. 1. She argues that the issue of equal treat-
ment is of constitutional dimension. This court addressed
the constitutionality of section 1521(j) in Burrow v. Nichol-
son, 245 F. App’x 972 (Fed. Cir. 2007), and concluded that
“it is not patently arbitrary and irrational to treat wartime
veterans differently than nonwartime veterans for the pur-
pose of awarding pension benefits . . . .” Id. at 974 (internal
Case: 20-1311 Document: 12 Page: 5 Filed: 12/17/2020
PERRY v. WILKIE 5
quotation marks omitted). The court held that there was
no merit to the constitutional challenge to the requirement
for service during a period of war in order to qualify for
pension benefits. Id.
We affirm that, by statute, Mrs. Perry is not entitled to
death pension benefits, and that the statutory requirement
for wartime service for this purpose does not violate the
constitutional right to equal protection.
B. Burial Benefits
The BVA also denied Mrs. Perry’s request for non-ser-
vice-connected burial benefits, on the ground that Mr.
Perry had not served in the active military, naval, or air
service, and did not have veteran status. The BVA stated
that “the deceased must have obtained Veteran status to
be eligible for burial benefits,” BVA Op. at *3 (citing 38
U.S.C. § 101(2) (“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.”)); see also 38 C.F.R. § 3.1701
(“For purposes of providing burial benefits . . . the term
‘veteran’ means the same as provided in 38 U.S.C.
§ 101(2).”); 38 C.F.R. § 3.6(a) (“Active military, naval, and
air service. This includes . . . any period of active duty for
training during which the individual concerned was disa-
bled . . . and any period of inactive duty training during
which the individual concerned was disabled or died from
an injury incurred or aggravated in line of duty . . . .”). The
BVA found that Mr. Perry did not meet the active service
requirement based on his Reserve service because he “was
not service-connected for any disability at the time of his
death, and there is no evidence that his death was in any
way related to his January to March 1977 military service.”
BVA Op. at *3.
The Veterans Court affirmed, explaining that “eligibil-
ity [for burial benefits] is limited to (1) veterans receiving
VA pension or disability compensation, (2) veterans who
Case: 20-1311 Document: 12 Page: 6 Filed: 12/17/2020
6 PERRY v. WILKIE
would have been receiving disability compensation but for
receipt of military retired pay, or (3) veterans who had cer-
tain pending claims at the time of death . . . .” Vet. Ct. Op.
at *3 (citing 38 C.F.R. § 3.1705(b)). The Veterans Court
found that Mr. Perry was not in receipt of a VA pension,
disability compensation, or retired pay, nor had he any
pending claim at the time of his death. Id. Thus the Vet-
erans Court held that Mrs. Perry was not entitled to burial
benefits.
The Veterans Court found that there was no evidence
that Mr. Perry’s death was related to his service in the Na-
tional Guard. Vet. Ct. Op. at *1. On the undisputed facts,
the Veterans Court’s decision is in accordance with the
statute and regulations, and is affirmed.
CONCLUSION
We conclude that Mrs. Perry is not entitled to receive
non-service-connected death pension or burial benefits.
The decision of the Veterans Court is affirmed.
AFFIRMED
No costs.