Citation Nr: 1308614	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  10-07 222	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines



THE ISSUE

Entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits. 


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The appellant's spouse died in January 1989.  She asserts entitlement to VA death benefits as a surviving spouse.  
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a determination of the VA Regional Office (RO) in Manila, the Republic of the Philippines.  

In March 2003, the RO denied the appellant's application for death benefits because the evidence reviewed did not show that her spouse had the required military service to be eligible for VA benefits.  

In August 2003, the appellant submitted a statement in response to the March 2003 decision and stated she "therefore appeal[ed] before your good office" and requested that they once again review their findings that her husband had no military records.  The RO subsequently responded to this statement with a letter describing the process used to verify service.  

In February 2009, the appellant requested to reopen her claim.  In April 2009, the RO denied the claim.  The appellant subsequently perfected this appeal.

On review, the Board finds that the appellant's August 2003 statement can liberally be construed as a notice of disagreement with the March 2003 decision.  See 38 C.F.R. § 20.201 (2012).  Accordingly, the Board finds that this appeal stems from the March 2003 decision, and it is not necessary to consider whether new and material evidence has been received sufficient to reopen the claim.  

In January 2013, the Board notified the appellant that a Central Office hearing was scheduled for February 7, 2013.  The appellant failed to report for the requested hearing.  She has not provided good cause for her failure to report or requested that the hearing be rescheduled.  Therefore, the hearing request is considered withdrawn.  See 38 C.F.R. § 20.702(d) (2012).

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).
FINDING OF FACT

The service department 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 did not have the requisite service to render her basically eligible for VA death benefits.  38 U.S.C.A. §§ 101, 107, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1, 3.159, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where an appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform such claimant of the information or evidence necessary to prove the element of veteran status.  Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) ("Since veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of VCAA notice concerning proof of veteran status is necessary in most, if not all, cases."). 

By letter dated in January 2003, the RO advised the claimant of the information and evidence needed to substantiate a claim of entitlement to service connection for cause of death.  She was further advised of the information and evidence that VA would attempt to obtain and of the information she was responsible for providing.  

In the March 2003 decision, the RO explained that verification of military service was the responsibility of the service department and its findings were binding on VA.  The August 2003 letter provided further information regarding verification of service.  The April 2009 decision also explained that the subject's service had not been verified.  The claim was most recently readjudicated in the July 2012 Supplemental Statement of the Case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). 

The Board acknowledges that the appellant was not specifically provided information regarding the assignment of VA disability ratings and effective dates.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).   However, in decision below, the Board has determined that basic eligibility for VA benefit has not been established.  Thus, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot.

On review, the service department has repeatedly 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.  VA is bound by this certification.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In light of the binding certification, any VCAA notification errors are non-prejudicial as the appellant is not entitled to the benefit as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [the service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error."). 

Under the VCAA, VA also has a duty to assist claimants in the development of a claim.  This includes assisting the claimant in procuring service treatment records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file.  As set forth in more detail below, the service department has repeatedly 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.
 
Review of the claims folder shows that an initial negative certification was received in June 1991.  Following the receipt of additional information, the RO again contacted the service department on multiple occasions and requested recertification of service for the appellant's spouse.  See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review).  

In requesting recertification, the RO provided the service department with the pertinent information for reference.  As set forth below, the service department responded on multiple occasions that no change was warranted in the prior negative certification.  Since the last negative certification, the appellant has produced no additional information which would warrant another request to the service department.  Additionally, given the nature of the issue on appeal, the Board finds that there is no need for a VA medical opinion.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided.  No reasonable possibility exists that any additional assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 


Factual Background

In January 2003, the RO received a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits.  

In January 2003, the RO submitted a VA Form 21-3101, Request for Information, to the service department.  

A response was received from the National Personnel Records Center (NPRC) in March 2003, which refers to a prior report dated in June 1991.  The report indicated that the subject had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  

In a VA Form 9 received in June 2009, the appellant argued that her spouse was a former United States Army Forces in the Far East (USAFFE) soldier and a former prisoner of war (POW).  

In a VA Form 9 received in February 2010, the appellant stated that her claim was based on clear and unmistakable error (CUE) and reiterated that her husband was a USAFFE member and a former POW.  

In November 2010, the RO again requested verification of service.  Attached was an Affidavit for Philippine Army Personnel dated in February 1946 and a Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General dated in June 2007.  

A December 2010 response from the service department indicates that the above evidence did not warrant a change in the prior negative certification.  

In November 2011, the RO again requested recertification.  The RO identified multiple claimed units of assignment and additional names under which the subject might have served.  Attached was an Affidavit for Philippine Army Personnel, Notice of Back Pay Acknowledgement, Equalization Pay Application, death certificate, marriage certificate, and Application for Old Age Pension to the Philippine Veterans Affairs office.  It was further noted that the subject individual was not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained in the Manila RO.  

In December 2011, the service department responded and stated that the subject had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  

The RO most recently requested recertification in May 2012.  Enclosed was an Affidavit for Philippine Army Personnel and the claimant's letters dated in September 2002 and May 2009.  The RO again identified multiple claimed units, provided alternate names, and noted that the subject was not listed in the RRGR.  

In June 2012, the service department responded stating that no change was warranted in the prior negative determination.  


Law and Regulations

The appellant claims that the military service of her spouse meets the requirements for eligibility for VA benefits on the basis that he was a "veteran." 

The provisions of 38 U.S.C.A. §§ 1310 to 1318, pertaining to dependency and indemnity compensation benefits, and 38 U.S.C.A. § 1542, pertaining to death pension benefits, require that the deceased person shall have been a veteran.  The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).

Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for specified benefits which do not include death pension benefits authorized by chapter 15, title 38, United States Code.  38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40, 3.41. 

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, the 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). 

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more; or (2) discharge for disability incurred in the line of duty; or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability.  38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c). 

The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion. See e.g. Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service."). 




Analysis

As set forth above, the service department has certified on multiple occasions 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.  VA is bound by that certification. 

The Board has carefully considered the documentation submitted by the appellant, but notes that it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  As such, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA.  

In any event, the Board notes that the NPRC considered the information contained in that documentation and nonetheless certified on multiple occasions 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 Armed Forces of the United States.  Again, the Board is bound by this certification.  See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicants only recourse lies within the relevant service department, not the VA"). 

As the service department has certified that the appellant's spouse did not have the requisite service to qualify her for VA benefits, the appeal must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Finally, the Board has considered the appellant's contention that VA's denial was clearly and unmistakably erroneous.  See VA Form 9 received February 2010.  As discussed in the introduction section above, the Board found this appeal to stem from the March 2003 denial of benefits.  Thus, even assuming, without conceding, that a CUE claim was properly pled with respect to this decision, it is not for consideration at this time, as the decision has not become final by virtue of this appeal.


ORDER

Basic eligibility for VA death benefits is denied. 



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs