Citation Nr: 1123676 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 10-02 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Whether the appellant's spouse had qualifying service (and was a veteran) for purposes of establishing entitlement to VA death benefits. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The appellant alleges that her deceased husband had recognized service as a member of the U.S. Army from March 1963 to April 1975, and had Vietnam service from February to May 1970. She added that this service was with Regiment 299. See VA Form 21-526, received in September 2008. He died in January 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decisional letter of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The appellant's deceased husband did not have any recognized active service, whether as a member of the U.S. Army or otherwise, that was in the service of the United States Armed Forces. CONCLUSION OF LAW The appellant's deceased husband did not have recognized active service and was not a veteran; the threshold legal requirement for establishing her entitlement to VA death benefits is not met. 38 U.S.C.A. §§ 101, 107, 1310, 1541 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), does not apply in the instant case. The only issue before the Board is whether the appellant's deceased spouse had qualifying service to establish veteran status; if not, she is not a proper claimant for VA benefits. The record includes service department certification of nonservice. Because qualifying service and how it may be established are outlined in statute and regulation and because service department certifications of service are binding (and dispositive unless there is evidence suggesting that a request for recertification of service is necessary), the Board's review is limited to interpreting the pertinent law and regulations. The United States Court of Appeals for Veterans Claims has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Factual Background The appellant contends that her spouse had qualifying service as a member of the U.S. Army from March 1963 to April 1975, and had Vietnam service from February to May 1970. She added that this service was as a member of a Cambodian Regiment 299 that volunteered alongside Special Forces units of the U.S. Army for operations in Cambodia during the Vietnam War. See VA Form 21-526, received in September 2008. Also in September 2008, as part of a VA Form 21-4138, the appellant contended that her deceased spouse had military service during the Vietnam War in Cambodia as a volunteer in the service of the United States Armed Forces. The RO notified the appellant in September 2008 that her death pension claim was denied as her deceased husband had no qualifying military service. It was added that public law dictated that service in the Cambodian Regiment 299 cannot be considered as qualifying service for VA benefits. The appellant, by means of an undated document, and witnessed by a retired Commander "299 B.BC and Special Force," seems to have attempted to document the service of her deceased husband. His military service was noted to have been with the Cambodia Army from January 1, 1970, to September 14, 1975, to include training in South Vietnam, Army coursework in Cambodia, and an attachment with the U.S. Assistance Command in Vietnam. In October 2009, the National Personnel Records Center (NPRC) certified that a search of their records did not reveal a record of the appellant's deceased husband's claimed service from January 1963 to April 1975. Also in October 2009, the NPRC certified that a search of their records did not reveal a record of the appellant's deceased husband's claimed service from March to June 1970. Legal Criteria and Analysis VA death benefits (whether dependency and indemnity compensation (DIC) or pension) are payable to the surviving spouses of veterans. 38 U.S.C.A. §§ 1310, 1521, 1524. "Veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101; 38 C.F.R. § 3.1(d). 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. 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. For purposes of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under 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 the VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). The documents submitted by the appellant do not meet the first requirement of 38 C.F.R. § 3.203(a) as they are not documents issued by a United States service department. She has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the United States Armed Forces. The appellant has not submitted any documents showing that her deceased spouse served in the United States Armed Forces. As noted above, the service department (via the NPRC) certified it had no record of the appellant's husband serving in the service of the United States Armed Forces. This certification is binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992). If a change of service department certification is what the appellant seeks, her remedy lies with the service department and not with VA. The regulations identify specific individuals and groups that are considered to have performed active military service. See 38 C.F.R. § 3.7 (2010). The appellant's alleged service is not among the groups identified as having performed active military service. Additionally, in October 2009, the NPRC indicated that it conducted an extensive search but it could not locate any military records concerning the appellant. In this case, the Board finds that the appellant has had no service as an individual or as a member of a group considered to have performed active military service. Despite the appellant's contentions, the Board is bound by the applicable statutes and regulations concerning who is eligible for pension benefits. The appellant's deceased spouse was not a U.S. veteran; the appellant is not entitled to VA death benefits based on his service. The law is dispositive in this matter. Consequently, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The appeal to establish basic legal entitlement to VA death benefits is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs