Citation Nr: 1315264 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-16 162 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to VA death pension benefits. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The appellant, who is the decedent's surviving spouse, seeks entitlement to VA death pension benefits on the basis of her husband's service in the Republic of the Philippines during World War II. The death certificate shows that the appellant's husband died in February 1995. In June 2009, the RO denied the appellants claim of entitlement to VA death pension benefits. The RO found that the Veteran had not had qualifying service during World War II which would entitle the appellant to be considered for VA death pension benefits. The appellant disagreed with that decision, and this appeal ensued. The case came before the Board of Veterans' Appeals (Board) in August 2011, at which time, it was remanded for further development. In attempting to verify whether the decedent had had qualifying service during World War II, the Board noted that his last name had been spelled in different ways on several documents submitted in support of the appellant's claim. Therefore, the Board directed the RO to contact the service department to verify the Veteran's service under an alternate spelling of his last name. Following the requested development, the RO confirmed and continued its finding that the Veteran did not have the requisite qualifying service. Thereafter, the case was returned to the Board for further appellate action. 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 In October 2009, February 2010, and December 2012, the National Personnel Records Center (NPRC) verified that during World War II, the decedent had not had 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 criteria for basic eligibility for VA death pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 101(24), 107, 1521, 1541 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Generally, prior to its analysis of an appeal, the Board must determine whether VA has met its statutory duty to assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA must notify the claimant of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her and notice of the evidence VA will attempt to obtain. When, as in this case, however, the law and not the evidence, is dispositive of the claim, the above provisions are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); Manning v. Principi, 16 Vet. App. 534, 542 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004. Thus, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Accordingly, further assistance to the claimant in the development of her claim is not warranted. The Applicable Law and Regulations VA shall pay pension for nonservice-connected disability or death to the surviving spouse of the veteran of a war who has the requisite wartime service or who was receiving (or entitled to receive) compensation or retirement pay for his service-connected disability. 38 U.S.C.A. §§ 1521, 1541. To determine basic eligibility for VA nonservice-connected death pension benefits, it is required, in part, that the veteran have active military, naval, or air service. 38 U.S.C.A. §§ 101, 1521; 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) . Active military, naval, or air service includes active duty. "Active duty" is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. The "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. 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. § 3.40, 3.41. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity benefits, or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214 (Certification of Release of 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 VA, the document is genuine and the information contained therein is accurate. 38 C.F.R. § 3.203(a) . When an appellant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA should request the verification of service from the appropriate 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 guerrilla. 38 C.F.R. §§3.40, 3.41. A service department determination as to an individual's service is binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Analysis A review of the evidence discloses that the appellant has submitted an April 1996 Certification from the General Headquarters of the Armed Forces of the Philippines showing that in January 1945, the decedent was recognized as having served with D Company Vayas Tayabas Grle and that he was carried as a Private in the Recognized Reconstructed Guerilla Roster of 1948. The appellant contends that this document substantiates her claim that her deceased husband had qualifying service during World War II which would entitle her to be considered for VA death pension benefits. However, such document does not satisfy the requirements of 38 C.F.R. § 3.203, and is, therefore, does not constitute probative evidence that the Veteran had the requisite service during World War II which would entitle her to be considered for VA death pension benefits. Therefore, in October 2009, February 2010, and December 2012, VA attempted to verify the decedent's service with the service department through the National Personnel Records Center (NPRC). Those attempts were unavailing. The NPRC found that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. As noted above, the service department's determination of service that is binding on the Board. Therefore, the Board concludes that the appellant does not meet the criteria for entitlement to VA death pension benefits. Indeed, the law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to VA death pension benefits is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs