Citation Nr: 0920319 Decision Date: 06/01/09 Archive Date: 06/09/09 DOCKET NO. 07-33 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to nonservice-connected death pension benefits. ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran had recognized guerrilla service from January 1945 to February 1946. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant requested a Board hearing in Washington, D.C. in October 2007. In December 2008, the appellant withdrew her request for such hearing. 38 C.F.R. § 20.704(e). FINDING OF FACT The appellant's deceased spouse did not have the requisite service to qualify the appellant for VA death pension benefits. CONCLUSION OF LAW The service requirements to convey to the appellant eligibility for VA death pension benefits are not met. 38 U.S.C.A. §§ 101(2), 101(24), 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.203 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Requirements Under the Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."). In this case, in a July 2007 letter, the RO notified the appellant of the information and evidence needed to substantiate and complete her claim for death benefits, including what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1). In addition, this letter explained what information or evidence she should submit to verify her deceased spouse's military service, including the opportunity to submit official United States documentation of service as evidence to establish Veteran status, and that the United States service department certification of Philippine service may be binding on her claim. See Palor v. Nicholson, 21 Vet. App. 325, 331 (2007). The RO then reconsidered the claim in a September 2007 Statement of the Case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); see also Medrano v. Nicholson, 21 Vet. App. 165 (2007) (holding that a notice error may be cured by providing compliant notice, followed by a readjudication); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Under the VCAA, VA also has a duty to assist claimants in the development of a claim. This includes assisting the claimant in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file. The RO has secured the necessary information regarding the service of the appellant's deceased spouse from the service department. The appellant has identified no other pertinent evidence, nor is there any indication of relevant, outstanding evidence. Given the nature of the issue on appeal, the Board finds that there is no need for a VA medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary in this case and the appellant has not argued otherwise. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In any event, the Court has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As set forth in more detail below, the appellant's appeal must be denied as a matter of law. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Id. Analysis The appellant seeks VA death benefits claiming her deceased spouse had military service in the United States Armed Forces during World War II. To establish basic eligibility for VA death benefits, the claimant must be the surviving spouse of a veteran who had active military, naval, or air service. 38 U.S.C.A. §§ 101(2), (24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" is defined as 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). "Active military, naval, and air service" includes active duty. In turn, "active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The "Armed Forces" consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Service of persons enlisted under section 14 of Public Law No. 190, 79th Congress (Act of October 6, 1945), is included for VA compensation and dependency and indemnity compensation benefits, but not for VA pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law No. 190, as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, Unites States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for VA compensation benefits, but not for VA nonservice-connected death pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for VA compensation benefits, but not for VA nonservice-connected death pension benefits. 38 C.F.R. § 3.40(b)-(d). Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. 38 U.S.C.A. § 501(a)(1). Under that authority, the Secretary has promulgated 38 C.F.R. § 3.203(a) and (c) to govern the conditions under which VA may extend veterans' benefits based on service in the Philippine Commonwealth Army. The pertinent regulation requires that service in the Philippine Commonwealth Army, in order to establish status as a veteran, be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department. 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available), and 38 C.F.R. § 3.203(c) (requiring service department verification of service where documentation is not available). For VA benefits where the requisite status as a veteran is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. Soria v. Brown, 118 F. 3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the qualifying service. Soria, 118 F. 3d at 749. In this case, the military service of the appellant's deceased spouse for purpose of VA death pension benefits has not been verified. It appears that the appellant's claim is made on the basis that her spouse was a member of the Philippine Army, inducted into the Armed Forces of the United States. Specifically, she asserts that he had active service during World War II from May 1942 until October 1945 as a Recognized Guerrilla under the Luzon Guerrilla Army Forces and, as such, he is a Veteran of the United States Armed Forces and entitled to monetary benefits which she, as his widow, is claiming in the form of nonservice connected death pension. In support of her claim, the appellant has submitted certifications from the Office of the Municipal Mayor, Office of the Municipal Social Welfare and Development, and from the Barangay Captain. These certifications essentially verify that the appellant receives Philippine Veteran benefits, based on the Philippine Veteran status of her deceased husband, but remains indigent and in need of monetary assistance. In July 2006, the National Personnel Records Center responded to a request of the RO for service verification by providing a copy of a November 1970 USAAC Form 632, a report of the Veteran's service prepared by the service department. The USAAC Form 632 verifies that the Veteran was missing on August 2, 1942, had no casualty status from August 3, 1942 to November 4, 1942, was missing from November 5, 1942 to January 13, 1942, his status under Missing Persons Act (MPA) terminated (MPAT) on January 13, 1945, and he had recognized guerrilla status from January 14, 1945 to February 16, 1946. The claims file contains no documentation issued by a United States service department that would show otherwise. There is no evidence to show that the appellant's deceased spouse had used a different name or alias during his military service; thus, there is no basis upon which to make another search to verify his military service and determine if he had valid service. While the veteran had recognized guerrilla service, such service is not included as qualifying service for pension benefits; thus, the appellant is not eligible for VA death pension benefits. ORDER As the appellant is not eligible for VA death pension benefits, the appeal is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs