Citation Nr: 1304150 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-15 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Basic eligibility for Department of Veterans Affairs (VA) benefits for purposes of entitlement to dependency and indemnity compensation (DIC), death pension, and accrued benefits. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION Evidence reflects that the service man had service during World War II and after World War II in the Philippines. This case comes before the Board of Veterans' Appeals (Board) from a decision of the VA Regional Office (RO) in Manila, Republic of the Philippines. In that decision, the RO denied the appellant's application for DIC, death pension, and accrued benefits because her spouse did not have qualifying service, rendering her ineligible for these VA benefits. In her May 2008 substantive appeal, the appellant requested a hearing before a Veterans Law Judge at the RO. Thereafter, in April 2009 she requested that her hearing request be withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the appellant's 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 appellant's spouse does not have status as a veteran for purposes of her claim for entitlement to DIC, death pension, and accrued benefits, and she therefore does not meet the basic eligibility requirements for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.10, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim and require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id. at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). In the context of a claim for DIC benefits, notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 at 352-353 (2007). The question before the Board is whether the decedent had the requisite service that would qualify the appellant for various VA death benefits as his surviving spouse. In compliance with the requirements of Hupp and before the initial adjudication of the claim, the RO sent the appellant a letter in January 2007 that told her what evidence was needed to substantiate entitlement to benefits on the basis of the decedent's service, what evidence VA would undertake to obtain, and what evidence she was responsible for obtaining. The letter informed the appellant that, in order to receive DIC, she needed to show either that the decedent was a veteran who died on active duty or that he died from a service connected disease or injury and listed the types of qualifying service needed for eligibility to benefits. In addition to providing various notices to claimants, VA also must make reasonable efforts to assist them with obtaining evidence that is necessary to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including the decedent's Philippine service records, private treatment records, death certificate, and various lay statements of the decedent and the appellant. The RO assisted the appellant in obtaining evidence by twice submitting evidence she submitted to the service department in order to obtain verification of the decedent's service. As the decedent's military service has not been verified, there is no other assistance that would be reasonably likely to assist the appellant in substantiating the claim. For the above reasons, the Board finds that VA complied with its obligations pursuant to the VCAA. Moreover, where the law determines the outcome further development is not indicated. See Livesay v. Principi, 15 Vet. App. 165 (2001); Sabonis v. Brown, 6 Vet. App. 426 (1994). Analysis Eligibility for VA benefits is governed by statutory and regulatory law which defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), (24); 38 C.F.R. §§ 3.1, 3.6. The term "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); 38 C.F.R. § 3.1(d). A "service-connected" disability is a disability that was incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). "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. Additionally, certain 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. §§ 3.8, 3.9. A surviving spouse is entitled to DIC, death pension, or accrued benefits only if the deceased spouse was a "veteran" under U.S. federal law. 38 U.S.C.A. §§ 1318, 5121, 1541 (West 2002). For the purpose of establishing entitlement to pension, compensation, DIC, or burial 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 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 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 submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203. 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 recognized guerrilla. The United States Court of Appeals for Veterans Claims has repeatedly held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge, forms which could be accepted as verification of service without verification from the appropriate service department, in accordance with 38 C.F.R. § 3.203(a). In lieu of these documents, the appellant has submitted the following documents regarding her husband's past military service: a Form 23 Affidavit for Philippine Army Personnel; a Special Orders extract from the Army of the United States of America, Headquarters 6th Military District; General Headquarters of the Armed Forces of the Philippines certification of Philippine military service; a letter of retirement from the Philippine Department of National Defense; a U.S. Presidential Memorial Certificate; a Republic of the Philippines Department of Finance acknowledgment of back pay for military service; Republic of the Philippines Department of Defense extension of military service letter; Republic of the Philippines Department of Finance appointment to intelligence officer letter; a letter appointing the decedent to executive consultant to the Philippine Commissioner of the Economic Intelligence and Investigation Bureau; U.S. Immigration and Naturalization Service fingerprinting appointment records; various identification cards for the decedent and the appellant, and a February 1997 signed affidavit from the decedent describing the nature of his military service. The majority of these documents show only that the decedent had a long and distinguished career working for the Philippine government and the Armed Forces of the Philippines from 1951 to 1977. The decedent's affidavit also alleges that he worked as a civilian employee for the U.S. Army Engineer Depot in Quezon City. These positions would not, however, entitle the decedent to the status of "veteran" pursuant to 38 U.S.C.A. § 101 and 38 C.F.R. § 3.1. However, the decedent's affidavit also states that he fought as a guerrilla soldier from January 1943, joined the Philippine Army in June 1945, processed by the U.S. Army Mobile Processing Team, and was honorably discharged in November 1946. The decedent's Form 23 Affidavit for Philippine Army Personnel categorizes the decedent as a "civilian guerilla" and indicates that he served as a guerilla private from June 1943 until June 1945 and as a private with the United States Army Forces in the Far East (USAFFE) from June 1945 to December 1945. The appellant has also submitted a Special Order extract dated in December 1943 with the heading "Army of the United States of America, Headquarters 6th Military District" which states that the decedent was appointed to "Private, Infantry" effective December 1, 1943. These documents alone fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department meeting the requirements of 38 C.F.R. § 3.203(a). As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits and must be submitted to the appropriate service department for verification, which in this case is the NPRC. 38 C.F.R. § 3.203(c). The documents were submitted to the NPRC in February 2007, and the NPRC responded that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. In an April 2009 informal conference at the RO, the appellant argued that the NPRC could have erred due to a misspelling of the decedent's name in the Form 23 Affidavit for Philippine Army Personnel and an incorrect birth date listed on the February 2007 NPRC report. The RO resubmitted the documents to the NPRC in November 2009 with the correct birth date listed and a request to search for both spellings of the decedent's name. The NPRC again responded that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. This verification from the NPRC is binding on VA such that VA has no authority to change or amend the finding. Duro, 2 Vet. App. at 532. The proper course for an applicant who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA. Furthermore, the Philippine government has its own laws and regulations which permit recognition of military service which was not officially recognized by the U.S. Army. This Department is bound to follow the certifications by the service department with jurisdiction over United States military records, the NPRC. Given that the service department's determination as to the service of the appellant's spouse is binding on VA, the NPRC's November 2009 response indicating that that the decedent had no qualifying service requires the Board to conclude that the appellant's spouse is not considered a "veteran" for purposes of entitlement to VA benefits. A surviving spouse is entitled to DIC, death pension, or accrued benefits only if the deceased spouse was a veteran pursuant to U.S. federal law. 38 U.S.C.A. §§ 1318, 5121, 1541. Therefore, the appellant's claim for entitlement to VA benefits, to include DIC, death pension, and accrued benefits, must be denied as a matter of law because she has not established basic eligibility for these VA benefits. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER As basic eligibility for VA benefits is not established, entitlement to DIC, death pension, and accrued benefits must be denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs