Citation Nr: 1007241 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-33 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to nonservice-connected death pension benefits. 2. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had periods of verified service in the Philippine Commonwealth Army and the Regular Philippine Army from December 1941 to June 1942, from October 6, 1942, to October 15, 1942, and from December 1, 1944, to June 30, 1946. He was a prisoner of war (POW) from April 9, 1942, to June 28, 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran had periods of verified service in the Philippine Commonwealth Army and the Regular Philippine Army from December 1941 to June 1942, from October 6, 1942, to October 15, 1942, and from December 1, 1944, to June 30, 1946. He was a prisoner of war (POW) from April 9, 1942, to June 28, 1942. 2. The appellant's application accrued benefits was received in December 2007, more than twenty five years after the Veteran's death. 4. At the time of his death, the Veteran did not have a pending claim for VA benefits. CONCLUSIONS OF LAW 1. The basic eligibility requirements for establishing entitlement to death pension benefits have not been met. 38 U.S.C.A. §§ 101(2), (24), 107, 1541(a), 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.3(a)(3), (b)(4), 3.6, 3.203 (2009). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5121 (West 2002 & Supp. 2009); 38 C.F.R. § 3.1000, 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claims for nonservice-connected pension and accrued benefits, these claims are being denied as a matter of law. In VAOPGCPREC 5-2004 (2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. The Court has also held that the VCAA does not apply in matters where the law, and not the evidence, is dispositive. Mason v. Principi, 16 Vet. App. 129 (2002). The appellant was advised of the bases for the denials of these claims, and was given ample opportunity to respond. Nonservice-connected Pension Claim The appellant in this case is the surviving spouse of a former member of the Philippine military. She alleges that his service during the Second World War is sufficient to establish nonservice-connected death benefits in the form of pension. The appellant has submitted a military certification from the government of the Philippines, which indicate that her spouse, who died in 1981, served in the Armed Forces of the Philippines from December 1941 to April 1968. The National Personnel Records Center (NPRC) has, however, returned a finding that the appellant's spouse did not have service which would qualify as service in the armed forces of the United States for VA pension benefits purposes. VA shall pay a pension to the surviving spouse of each Veteran of a period of war who met the service requirements of 38 U.S.C.A. § 1541(j) of this title. 38 U.S.C.A. § 1541(a). Basic entitlement exists if a Veteran had qualifying service as specified in 38 C.F.R. § 3.3(a)(3). 38 C.F.R. § 3.3(b)(4). Service in the organized military forces of the Government of the Commonwealth of the Philippines is recognized service for eligibility for VA compensation and dependency and indemnity compensation benefits, but not for nonservice connected death pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. In June 1981, the National Personnel Records Center (NPRC) certified that the Veteran had recognized periods of service in the Philippine Commonwealth Army and the Regular Philippine Army from December 1941 to June 1942, from October 6, 1942, to October 15, 1942, and from December 1, 1944, to June 30, 1946. Findings by a United States service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board has carefully reviewed the entire record and finds that there is no competent evidence to contradict the NPRC's determination with respect to the service of this Veteran. Therefore, the Board must find that the Veteran did not have qualifying service. As a result, the appellant's request for death pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accrued Benefits Claim Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000 (a) (as amended 71 Fed. Reg. 78368 (effective Jan. 29, 2007)). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000 (c). An application for accrued benefits must be filed within one year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.1000(c), 3.152(b) (2009). However, for claims filed for death benefits, a specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.152(a) (2009). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, "for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." In December 2007, the appellant filed a claim for death benefits. It is clear that the appellant did not file her application for accrued benefits within one year of the Veteran's death. In fact, the application was received more than twenty-five years after his death. The Board acknowledges that the appellant points to a March 1981 application for burial benefits as a claim for accrued benefits; however, the Board notes that an application for burial benefits is not equivalent to an application for accrued benefits. Alternately, the appellant's derivative claim for accrued benefits must be denied as a matter of law because the Veteran had no claims for VA benefits pending at the time of his death. See Jones, 136 F.3d .at 1299; Sabonis, 6 Vet. App. at 430. As the claims file is absent any evidence that the Veteran had a claim pending for any VA benefit at the time of his death and because the appellant did not file her application for accrued benefits within one year after the date of his death, she is not legally entitled to this benefit. 38 C.F.R. §§ 3.1000(c), 3.152(b). The law pertaining to eligibility for accrued benefits is dispositive of this issue. The appellant's claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis, 6 Vet. App. at 430. ORDER Entitlement to non-service connected death pension benefits is not warranted. Entitlement to accrued benefits is not warranted. The appeal is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs