Citation Nr: 1127932 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 08-31 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to nonservice-connected death pension benefits. WITNESSES AT HEARING ON APPEAL Appellant and Mr. R.P. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant is the surviving spouse of the Veteran, who died in June 1998. The Veteran served in the Recognized Guerillas from February 5, 1945 to August 21, 1945, with the Regular Philippine Army from August 22, 1945 to February 6, 1946, and in the Special Philippine Scouts from September 5, 1946 to May 19, 1949 This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant and Mr. R.P. presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, sitting at the RO, in July 2009. A transcript of the hearing is associated with the claims file. In November 2009, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. In addition to remanding the claim listed above, in November 2009, it also denied a claim for accrued benefits, and dismissed an appeal for service connection for the cause of the Veteran's death. The Board's decision with respect to those claims is final. See 38 C.F.R. § 20.1100 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran served in the Recognized Guerillas from February 5, 1945 to August 21, 1945, served with the Regular Philippine Army from August 22, 1945 to February 6, 1946, and served in the Special Philippine Scouts from September 5, 1946 to May 19, 1949; the Veteran had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the United States Armed Forces prior to October 6, 1945. CONCLUSION OF LAW The claim for nonservice-connected death pension benefits lacks legal merit. 38 U.S.C.A. §§ 101(2), 107, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.102 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). In some cases, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, the pertinent facts regarding the Veteran's service are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to entitlement to death pension benefits. The VCAA is therefore inapplicable and need not be considered with regard to those claims. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. Nevertheless, the RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC), but the NPRC indicated that the records had likely been destroyed by fire/were missing and could not be located. In these circumstances, when a Veteran's service treatment records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). When conducting a hearing, a Veterans Law Judge must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2010). The Veterans Law Judge also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the hearing, the pertinent details of the Veteran's service were discussed. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. As noted above, this appeal has been previously remanded by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by requesting an additional attempt at verification from the National Personnel Record Center regarding a period of service prior to October 6, 1945, under the version of the Veteran's name that includes no middle initial, which is the version of his name reflected in several pages of copies of official Unites States Army documentation and identification of record. The results of that request are discussed below. Death Pension The term "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(2); 38 C.F.R. § 3.1(d). The term "veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). Generally, persons with service in the U.S. Army Forces in the Far East (USAFFE), including service with the recognized guerrillas, the Commonwealth Army of the Philippines, or service with the "New" or "Special" Philippine Scouts under Public Law 190, 79th Congress, shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to nonservice-connected disability pension. See 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(b),(c),(d). To establish entitlement to the nonservice-connected pension benefits, the evidence must show that the Veteran had service in a "regular" component of the United States Armed Forces, also referred to as the "Old Philippine Scouts" or the "Regular Philippine Scouts." See 38 C.F.R. § 3.40(a) ("Regular Philippine Scouts" are eligible for pension, compensation, dependency and indemnity compensation, and burial benefits). By contrast, 38 C.F.R. § 3.40(b) provides that "Other Philippine Scouts," to include all those who served during the period from October 6, 1945 to June 30, 1947 (i.e., New or Special Philippine Scouts), are eligible for compensation and dependency and indemnity compensation benefits, but does not provide for eligibility for pension benefits. See 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(b); Manlincon v. West, 12 Vet. App. 238, 240 (1999) (widow of veteran of New Philippine Scouts not entitled to nonservice-connected death pension because veteran's service is not considered qualifying active service for VA pension benefits). The Court has held that 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). In this case, the service department has certified that the Veteran served in the Recognized Guerillas from February 5, 1945 to February 6, 1946, and in the Special Philippine Scouts from September 5, 1946 to May 19, 1949. In response to the Board's remand, the NPRC responded in September 2010 that the Veteran had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the United States Armed Forces prior to October 6, 1945. As a matter of law, the documented Philippine service does not satisfy the statutory or regulatory service requirements necessary to establish entitlement to nonservice-connected death pension. See 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. The appellant's contentions regarding the Veteran's service are nonspecific on this point, and assert only that the Veteran served in the Philippine Scouts under the U.S. Army, and that he became a naturalized U.S. citizen. While this is apparently true, such service does not meet the requirements for the benefit sought. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Nonservice-connected death pension benefits are denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs