Citation Nr: 1300161 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-49 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension benefits. REPRESENTATION Appellant represented by: [redacted] ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served with the Recognized Guerillas from August 1943 to April 1945, and served with the Regular Philippine Army from April 1945 to May 1945. The Veteran died on May [redacted], 1985. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the VA Regional Office (RO) in Manila, the Republic of the Philippines. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The RO denied service connection for the cause of the Veteran's death in a February 2002 rating decision, which was confirmed by a February 2004 decision of the Board. The appellant's Motion for Reconsideration was denied by the Deputy Vice Chairman in April 2004. 2. In an unappealed August 2004 rating decision, the RO found that new and materialevdience had not been submitted to reopen a claim of entitlement to service connection for the cause of the Veteran's. 3. The additional evidence received since the August 2004 rating decision is duplicative, cumulative or redundant of evidence previously considered, and does not raise a reasonable possibility of substantiating the claim. 4. The Veteran did not possess the requisite service to allow his surviving spouse to qualify for VA nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. With regard to the claim for service connection for the cause of the Veteran's death, the February 2004 Board decision and August 2004 rating decision are final. 38 U.S.C.A. §§ 7104(b), 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1103, 20.1104 (2012). 2. New and material evidence has not been received since the final August 2004 rating decision to reopen the cause of death claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The service requirements for eligibility for VA nonservice-connected death pension benefits are not met. 38 U.S.C.A. §§ 101, 107, 1501, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, with regard to the death pension claim, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter, such as in the present case. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist for that issue. With regard to the cause of death claim, review of the claims folder reveals compliance with the VCAA. The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in July 2010. This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the appellant about the information and evidence not of record that was necessary to substantiate the new and material evidence and cause of death issues; (2) informing her about the information and evidence the VA would seek to provide; (3) informing her about the information and evidence she was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO did not, however, provide VCAA notice that an effective date for the award of benefits will be assigned if dependency and indemnity compensation (DIC) benefits are awarded, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Regardless, since DIC benefits are being denied, no effective date will be assigned on this basis, so not providing additional notice concerning this downstream element of the claim is moot and, therefore, at most harmless error. See, too, Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In the context of a claim for DIC benefits, the U.S. Court of Appeals for Veterans Claims (Court) has held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In the present case, the July 2010 VCAA notice letter is compliant with Hupp, in that it explained the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, as well as a condition that is not yet service connected. Moreover, the Veteran was not service-connected for any condition at the time of his death. The appellant in various statements and at her hearing also demonstrated knowledge as to why the RO denied the cause of death claim. The appellant has argued that stress and anxiety from service due to the deaths of the Veteran's brothers by the Japanese precipitated the development of a heart condition, causing the Veteran's eventual death. That is, the record reflects that the appellant has demonstrated actual knowledge of precisely what evidence she would need to submit to substantiate her DIC claim. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Moreover, with regard to new and material evidence, the July 2010 VCAA notice letter is compliant with the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), because it sufficiently explained the bases of the prior denial (i.e., the deficiencies in the evidence when the claim was previously considered). The appellant was advised that she must submit evidence showing the Veteran's cause of death was related to his military service. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). In the present case, the Board sees the RO did not provide the appellant with all VCAA notice prior to the January 2010 adverse determination on appeal. But in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the timing error was cured. After providing compliant VCAA notice in July 2010, the RO readjudicated the claim in a September 2010 SOC. Thus, the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) and service personnel records (SPRs) from the Veteran's Philippine service. For her part, the appellant has submitted a death certificate, personal statements, lay statements from her son (who is also her representative), private medical evidence, employer records, e-mails, internet medical treatise evidence, post-service Philippine Army personnel records, duplicate STRs and SPRs, and hearing testimony. In addition, the Board finds that the evidence here does not require that a separate VA medical opinion be obtained with respect to appellant's cause of death claim for benefits. In this vein, the Board acknowledges the Federal Circuit cases of DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) and Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), which held that 38 U.S.C.A. § 5103A(a) does not require VA to assist a claimant in obtaining a medical opinion or examination in a DIC claim when no reasonable possibility exists that such assistance would aid in substantiating the claim. In essence, here, the STRs and SPRs are silent for any reference to the heart problems which caused the Veteran's death, and there is no medical evidence or lay allegation in the claims folder of a heart disorder or symptoms until the 1980s, over 35 years after discharge from service. In fact, there is no lay allegation of continuity of symptomatology and no competent medical evidence or opinion indicating that the heart-related conditions that caused the Veteran's death were related to his Philippines service, and such a determination is not capable of lay observation as it requires specialized knowledge of the etiology of cardiovascular disorders, as opposed to identification of tinnitus and varicose veings. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) ("When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.") (quoting Frye v. United States, 293 F. 1013, 1014 (1923)); see also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Thus, there is no reasonable possibility of substantiating the cause of death claim on any basis, and a VA medical opinion is not warranted. Furthermore, the duty to provide a VA examination and opinion only apply once there is new and material evidence to reopen the previously denied claim. See 38 C.F.R. § 3.159(c)(4)(C)(iii); Paralyzed Veterans of America, et al. v. Secretary of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Here, the Board finds there is no new and material evidence to reopen the cause of death claim; hence, a remand for a VA examination and opinion is not warranted. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). New and Material Evidence to Reopen the Cause of Death Claim Veterans who served in the Commonwealth Army of the Philippines (or Regular Philippine Army) are eligible for DIC, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941. Service as a Recognized Guerrilla under the circumstances outlined in 38 C.F.R. § 3.40(d) is also included for DIC benefits. See 38 C.F.R. § 3.40(c); see also VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart vi, Chapter 4, Section A, Topic 2, Block a (Eligibility Table for VA Benefits Based on Service in the Philippines). Service department records confirm that the Veteran served with the Recognized Guerillas from August 1943 to April 1945, and served with the Regular Philippine Army from April 1945 to May 1945. See 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The fact that the Veteran served in this capacity, at least giving the appellant standing for DIC cause of death benefits, is not in dispute here. But in order to establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. In this case, the Veteran died on May [redacted], 1985. The Veteran was 68 years of age. The death certificate lists the immediate causes of death as cardiac arrest due to sick sinus syndrome, status post pacemaker insertion, due to degenerative heart disease. Degenerative heart disease was identified as the underlying cause of death. In addition, ventricular fibrillation was listed as a contributory cause of death. No autopsy was conducted. At the time of his death, the Veteran did not have a single adjudicated service-connected disability. The appellant contends that the heart-related causes of the Veteran's death should be service connected. She maintains that trauma and anxiety from the Veteran's Philippine service due to the war-related deaths of the Veteran's brothers by the Japanese, precipitated the development of heart problems, causing the Veteran's eventual death. She indicates that a progressive and debilitating heart condition occurred over time, but she never asserts the Veteran experienced continuity of heart symptoms from the time of discharge in 1945. See January 2004, April 2004, August 2004 appellant's statements; July 2003 video testimony at pages 2-5. The RO denied service connection for the cause of the Veteran's death in a February 2002 rating decision. In a February 2004 Board decision, the Board confirmed this denial. The appellant's Motion for Reconsideration of the Board decision was denied by the Deputy Vice Chairman in April 2004. Therefore, the February 2004 Board decision, which subsumes the prior RO decision, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104 (2012). The RO subsequently confirmed the denial by way of an August 2004 rating decision, determining that new and material evidence had not been submitted to reopen the cause of death claim. This decision, since not appealed, is also final and binding. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). The Court has held that in determining whether new and material evidence has been submitted to reopen a claim, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (emphasis added). In the previous, final February 2004 Board decision and subsequent, final August 2004 rating decision, the RO denied the appellant's cause of death claim because the competent medical evidence of record failed to establish that the cause of the Veteran's death from heart problems was related to his Philippines service during World War II. In addition, there was no evidence of heart disease during service or within one year of service. The first medical evidence of heart problems in the claims folder is from 1985, nearly 40 years after discharge from service. The RO did not reopen the new and material evidence petition and consider it on the merits. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the cause of death claim before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. The appellant filed her petition to reopen service connection for the cause of the Veteran's death in December 2009. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. Evidence of record at the time of the last, final August 2004 rating decision consists of Philippine STRs and SPRs; private treatment records; various personal statements by the appellant and her son; a May 1985 death certificate; July 2003 video hearing testimony; Internet medical treatise evidence; a photograph of the Veteran; records from the Veteran's employer; and affidavits from the Veteran. Evidence received since the last, final August 2004 rating decision consists of lay statements from the appellant and her son; e-mails from the appellant's son; duplicate medical treatise evidence; duplicate service records; post-service Philippine Army records; and a post-service affidavit from the Veteran. Initially, the Board finds that duplicate medical treatise evidence and duplicate service records submitted by the appellant were already of record at the time of the August 2004 rating decision. Therefore, these records are not new and cannot form the basis to reopen the claim. 38 C.F.R. § 3.156(a). In addition, the Board finds that the additional lay statements and e-mails submitted by the appellant and her son are cumulative of evidence that was previously of record. Specifically, these records merely repeat and summarize the contention that the cause of the Veteran's death due to heart problems was related to stress from his service in the Philippines. These records also repeat the contention that the Veteran filed an earlier claim for VA benefits in 1947. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In this regard, a lay statement which is cumulative of previous contentions that were considered by the decision maker at the time of the prior disallowance of the claim is not "new" evidence. See e.g., Untalan v. Nicholson, 20 Vet. App. 467 (2006) (the presentation of new arguments based on evidence already of record as of the previous decision does not constitute new evidence); Bostain v. West, 11 Vet. App. 124, 127 (1998). With respect to the remaining evidence, the Board finds that, although this additional evidence is "new" and, therefore, not duplicative or cumulative or redundant of evidence on file at the time of the August 2004 rating decision, it nonetheless is not "material" within the meaning of 38 C.F.R. § 3.156(a). Specifically, a post-service July 1947 Philippine Army record and a post-service April 1954 affidavit from the Veteran establish that the Veteran had applied for "arrears in pay" from his Recognized Guerrilla service in the Philippines. However, this evidence does not show in any way that the Veteran was requesting VA disability compensation for a heart condition in the 1940s or 1950s. Rather, this evidence pertains to military service pay, not VA compensation. In addition, neither the appellant nor her son specifically contends that the Veteran filed for VA compensation for a heart condition at that time. Therefore, this evidence therefore does not relate to an unestablished fact necessary to substantiate the cause of death claim, and thus does not raise a reasonable possibility of substantiating the cause of death claim. 38 C.F.R. § 3.156(a). In short, no additional competent medical evidence was submitted demonstrating that the causes of death listed on the death certificate were incurred or aggravated during the Veteran's service in the Philippines. Accordingly, the Board finds no new and material evidence to reopen the claim for service connection for the cause of the Veteran's death. The claim is not reopened. 38 U.S.C.A. § 5108. Governing Laws and Regulations for Death Pension Death pension is a benefit payable to a Veteran's surviving spouse because of the Veteran's nonservice-connected death. Basic entitlement exists if (i) the Veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.3(b)(4); 3.23(a)(5), (d)(5) (2012). In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the individual with respect to whom pension is claimed be a Veteran who had active military, naval, or air service. See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012). "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. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). "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. A "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C.A. § 1501(4) (West 2002); 38 C.F.R. § 3.2 (2012). 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 (Regular Philippine Army), 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 benefits. See 38 U.S.C.A. § 107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.40(b), (c), (d) (2012). That is, 38 C.F.R. § 3.40(b) provides that "Other Philippine Scouts," which includes 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 DIC 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). By contrast, to establish entitlement to 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) (emphasis added) ("Regular Philippine Scouts" are eligible for pension, compensation, dependency and indemnity compensation, and burial benefits). With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine Scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla. 38 C.F.R. §§ 3.40, 3.41; Duro v. Derwinski, 2 Vet. App. 530 (1992). Generally, a service department determination as to an individual's service shall be binding upon VA unless a reasonable basis exists for questioning it. See 38 C.F.R. § 3.1(y); Manibog v. Brown, 8 Vet. App. 465 (1996); Young v. Brown, 4 Vet. App. 106 (1993); Duro v. Derwinski, 2 Vet. App. 530 (1992). Analysis - Death Pension The RO in its January 2010 rating decision determined that death pension was not payable based on the Veteran's type of service in the Philippines during World War II. The RO concluded the Veteran's service did not constitute "active" military service to meet the basic entitlement requirement for nonservice-connected death pension benefits. The service department verified that the Veteran served with the Recognized Guerillas from August 1943 to April 1945, and served with the Regular Philippine Army from April 1945 to May 1945. Neither the appellant nor the Veteran nor service records allege or establish service as an "Old Philippine Scout" or a "Regular Philippine Scout" before October 6, 1945. See e.g., PA AGO Forms No. 23 (Affidavits for Philippine Army Personnel), dated in April 1945 and January 1946. The Veteran's periods of service are not in dispute, and no other period of service has been alleged. By law, unlike service in the "Old Philippine Scouts" or the "Regular Philippine Scouts," the Veteran's particular service is not deemed to be qualifying service for death pension benefits. See 38 C.F.R. § 3.40(a). The service department decision on such a matter is conclusive and binding upon VA. V A 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). The Board has carefully reviewed the entire record and finds that there is no competent evidence to contradict the service department's determination with respect to the Veteran's service. Therefore, the Board must find that the Veteran did not have qualifying service for the purposes of nonservice-connected death pension benefits. The law under 38 U.S.C.A. § 107(a), and the implementing regulation, 38 C.F.R. § 3.40, specifically excludes service such as the Veteran's for purposes of entitlement to nonservice-connected death pension benefits. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996). Consequently, the Board finds that there is no legal basis for the appellant's claim for nonservice-connected death pension. As the law is dispositive, the claim is denied because of lack of legal entitlement. 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.4; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As no new and material evidence has been received, the claim of service connection for the cause of the Veteran's death is not reopened. Entitlement to nonservice-connected death pension benefits is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs