Citation Nr: 0811222 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-03 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to the Department of Veterans Affairs (VA) death benefits. ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines that denied the benefits sought on appeal because the appellant's deceased husband does not have the required military service to be eligible for VA benefits. The Board also observes that the appellant requested a Travel Board hearing in her January 2006 VA Form 9; however, she later wrote in a February 2006 statement that she no longer wanted the hearing. Thus, the appellant's hearing request has been withdrawn. FINDING OF FACT The National Personnel Records Center has certified that the appellant's deceased spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The requirements for basic eligibility for VA death benefits based on qualifying service by the appellant's late husband have not been met. 38 U.S.C.A. §§ 101(2), 5106 (West 2002); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The question before the Board is whether the appellant's late husband had qualifying service to establish eligibility for VA death benefits. The record shows that the National Personnel Records Center reported that the appellant's deceased spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Because qualifying service and how it may be established are governed by law and regulations and because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Where as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Board observes, however, that the RO provided the appellant with a copy of the August 2005 decision, the October 2005 Statement of the Case (SOC), and the February 2006 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. In addition, the RO sent correspondence in November 2006 advising the appellant of what the evidence must show to support her claim for legal entitlement to VA benefits, describing the type of evidence that would support her claim, and asking her to send any information or evidence in her possession that pertained to her claim. The RO also explained what evidence had already been obtained, what evidence VA was responsible for obtaining, and what evidence VA would make reasonable efforts to obtain on the appellant's behalf in said correspondence. Thereafter, the RO allowed the appellant additional time and opportunity to submit evidence and information in support of her claim; however, no response to the November 2006 letter is of record, which indicates that the appellant had no further evidence to submit in support of her claim. Based on the foregoing, the Board will proceed with appellate review. Legal Criteria Eligibility for VA benefits is based on statutory and regulatory provisions, which define an individual's legal status as a veteran of active military service. 38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2007). As a predicate requirement for a grant of VA benefits, a claimant must establish that he or she is a "veteran," 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) (West 2002); 38 C.F.R. § 3.1(d)(2007); see Selley v. Brown, 6 Vet. App. 196, 198 (1994). Active military, naval, or air service includes active duty. "Active duty" is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6 (2007). The "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1 (2007). 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. § 3.10 (2007). For the purpose of establishing entitlement to pension, compensation, dependency and indemnity benefits, or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214 (Certification of Release of Discharge from Active Duty) or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA, the document is genuine and the information contained therein is accurate. 38 C.F.R. § 3.203(a)(2007). The Court has held that "VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Furthermore, "service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces." Id. In cases for VA benefits where requisite veteran status is at issue, the relevant question is whether the claimant has qualifying service 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 upon VA. 38 C.F.R. § 3.203 (2007). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Under 38 C.F.R. §§ 3.41 and 3.203, Philippine veterans are not eligible for veterans' benefits unless a United States service department documents or certifies their service. Dacoron v. Brown, 4 Vet. App. 115, 120 (1993); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Analysis In May 2005, the appellant filed an application for VA death benefits asserting that her deceased husband's death was caused by service. At that time, the appellant submitted a certificate from the Philippine Veterans Affairs Office dated in July 1992 showing that the appellant's late husband served from April 6, 1945 to September 26, 1945 in support of her claim. The appellant also submitted certification of her late husband's military service from the Office of the Adjutant General, General Headquarters of the Armed Forces of the Philippines. In June 2005, the RO requested verification of service from the National Personnel Records Center. In July 2005, the National Personnel Records Center reported that the appellant's deceased spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In light of the above, the aforementioned certificates submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as this is not an official document of the appropriate United States service department, and is without the official seal. The document therefore is not acceptable as verification of the appellant's deceased spouse's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In this case, the service department has determined that the appellant's late husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the decedent's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for death benefits, and the claim must be denied based upon a lack of entitlement under the law. (CONTINUED ON NEXT PAGE) ORDER The appellant's claim for entitlement to VA death benefits is denied as a matter of law. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs