Citation Nr: 1313502	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  11-21 944	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1. Entitlement to accrued benefits. 

2. Entitlement to non-service connected pension benefits. 

3. Entitlement to an earlier effective date for the grant of Dependency and Indemnity (DIC) benefits.


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel



INTRODUCTION

The appellant's spouse had service in the Commonwealth of Philippines, USAFFE.   
He did not have qualifying service with the United States Armed Forces.

This matter comes to the Board of Veterans' Appeals (Board) from a August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which granted service connected death benefits, called dependency and indemnity compensation (DIC), effective December 1, 2008.  The rating decision denied the claim for death pension and accrued benefits. 

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. At the time of the appellant's spouse's death, October [redacted], 1944, he did not have any pending claims for VA benefits and no monetary benefit was due or unpaid prior to his death. 

2. The service department verified that the appellant's spouse did not have active service in the United States Armed Forces. 

3. The appellant's spouse died October [redacted], 1944 in service of the Philippine Commonwealth Army.   

4. The first claim for dependency and indemnity compensation (DIC) benefits was received November 25, 2008. 


CONCLUSIONS OF LAW

1. There are no accrued benefits due and payable.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000(a) (2012).

2. The legal criteria for basic eligibility for VA non- service-connected pension benefits are not met.  38 U.S.C.A. §§ 101, 107, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2012).

3. The criteria for an award of DIC from a date earlier than November 25, 2008, are not met.  38 U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§ 3.31, 3.114, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Accrued Benefits  

As the appellant's spouse did not have any pending claims for VA benefits at the time of his death, and no monetary benefit was due or unpaid prior to his death there can be no claim for accrued benefits.  Therefore the appellant has no legal entitlement to accrued benefits.  

As the law and not the evidence is dispositive on this issue, entitlement to accrued benefits must be denied due to lack of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


Pension Benefits 

The appellant contends that her deceased spouse served in the United States Armed Forces and therefore she is entitled to pension benefits. 

A non-service connected disability pension is available to a veteran who served for 90 days or more during a period of war, who is permanently and totally disabled due to non-service connected disabilities which are not the result of his own willful misconduct, and who satisfies certain income and net worth requirements. 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.3(a) (3).  A "veteran" is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  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 certain benefits as specified by law. 38 U.S.C.A. § 107(a).  Those specified benefits do not include non-service-connected disability pension benefits.  Id.  


The NPRC has certified that the appellant's spouse had no service in the United States Armed Forces.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  The proper course for the 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).  This Department is bound to follow the certifications by the service departments with jurisdiction over United States military records. 

The appellant's spouse served as a member of the Philippine Commonwealth Army (USAFFE) from December 1941 to October 1944. 

Service in the Philippine Commonwealth Army is included as service for compensation, dependency and indemnity compensation, and burial allowance, however it does not include pension.  38 C.F.R. § 3.40(c) (1).  In order to be entitled to pension benefits the appellant's spouse must have had service in the United States Armed Forces.  As he did not have service in the United States Armed Forces, the appellant is not eligible for pension benefits. 

As the law and not the evidence is dispositive on this issue, entitlement to nonservice connected death pension must be denied due to lack of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Earlier Effective Date 

The appellant's spouse died in service of the Philippine Commonwealth Army.  A report from the service department dated November 1955 showed that the appellant was presumed to have died on October [redacted], 1944.  The earliest date of determination or presumption of death was September 10, 1947 which was the earliest date when the department received evidence to support a certification of death. 

The appellant's earliest informal claim was received November 25, 2008 with an original claim submitted subsequently.  

The effective date of an award based on a claim for dependency and indemnity compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application.  38 U.S.C.A. § 5110(a).  For service connected death after separation from service, the effective date is the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of death; otherwise, the effective date is the date of receipt of the claim 38 C.F.R. § 3.400(c)(2).  

Any written communication which indicates intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 1.55(a). 

The appellant argues that she did not know about the appellant's death within one year of his death; therefore, she could not have filed a claim within one year of his death.  The record contradicts her assertion.  In November 1955 the appellant filed an inquiry for service record and information on her deceased spouse which informed her, at that time, that her spouse was presumed to have died in October 1944.  The appellant was aware that her spouse was presumed dead in 1955.  Regardless of when she became aware of his death, a claim was not filed. 

The first written communication received from the appellant of her intent to apply for DIC benefits was November 25, 2008.  The date of the claim is the date the informal claim was received, November 25, 2008.  December 1, 2008 is the effect date as payment of VA benefits is effective the first day of the calendar month following the month in which the award was effective.  38 C.F.R. § 3.31.  An earlier effective date is not warranted. 

Notice and Assistance

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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).  

A March 2010 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The appellant's service records have been obtained; she did not identify any additional records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Board has reviewed the Veteran's "Virtual VA" file. 

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 



ORDER

Accrued benefits are denied. 

The appellant has no legal entitlement to non-service-connected pension benefits 

An earlier effective date for DIC is denied. 



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs