Citation Nr: 1315469	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  11-02 379	)	DATE
	)
	)


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



THE ISSUE

Eligibility for VA death benefits.



ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The appellant contends that her deceased husband served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, between 1942 and 1946, and that his death was related to such service.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

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 National Personnel Records Center (NPRC) has certified that the appellant's deceased husband 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.


CONCLUSION OF LAW

The appellant's spouse does not have status as a veteran for purposes of her claim for entitlement to DIC benefits, and she therefore does not meet the basic eligibility requirements for 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

I.  Notice and Assistance

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.  With regard to claims which may turn on whether there was recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated by the VCAA to inform the 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."); Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting 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 to be submitted to the service department for review).  

The VCAA letter provided to the appellant in the case did not include specific information regarding the type of evidence that she could submit pursuant to 38 C.F.R. § 3.203 (2012) to establish veteran status for her deceased husband.  However, as will be discussed in further detail below, because the service department has certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces during World War II, which finding is binding on the Board, the law is dispositive of the issue and any VCAA-notice error is non-prejudicial as the claimant is not entitlement to benefits as a matter of law.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 (concluding 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"); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law) aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  Further, in light of the service department's finding, no further assistance would aid in substantiating the appellant's claim.  

II.  Analysis

The surviving spouse of a deceased veteran who died from a service-connected or compensable disability may be eligible for dependency and indemnity (DIC) benefits or other death benefits.  38 U.S.C.A §§ 1310 (West 2002).  In order to qualify for such benefits, "the party upon whose service the claimant predicates the claim . . . [must be] a 'veteran.'"  Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).  A 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) (West 2002); see 38 C.F.R. § 3.1(d) (2012).  Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces.  See 38 U.S.C.A. §§ 101(10), 101(21)(c), 101(24), 107 (West 2002); 38 C.F.R. § 3.40 (2012).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria, supra.  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203(c).  If the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, supra.  Thus, in cases where verification of the claimed service is required, absent documentation or certification of such service by the relevant service department, a claimant would not be eligible for VA benefits based on such service.  Soria, supra; 38 C.F.R. § 3.203.

Under 38 C.F.R. § 3.203(a), 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 Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

In the instant case, the appellant seeks entitlement to DIC benefits, alleging that her husband's death was related to his service with the organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces.  In support of her claim, the appellant submitted a copy of the decedent's Form 23 ("Affidavit for Philippine Army Personnel"), which purported to show that the appellant's spouse was categorized as a "civilian guerilla" and had service a "Private Infantry" with various units from September 1942 to February 1946.  A review of the Reconstructed Guerilla Roster maintained by the RO failed to reveal the decedent's name.  The RO thus requested that the NPRC complete an AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to June 30, 1946, including all available medical and clinical evidence.

In a response dated in April 2010, the NPRC indicated 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.  In May 2010, the RO denied entitlement to VA benefits upon finding that her deceased spouse did not have the requisite military service to render her potentially eligible for such benefits.  The appellant disagreed with the decision and requested reverification of the decedent's service based on his alleged service with seven different military organizations.  (The initial request to the NPRC indicated only that the decedent had served with the "Hq. Co. 2nd Prov Bn, 3rd Pang. Regt".)  The matter was again referred to the NPRC, which request listed all units indicated by the appellant, as well as an additional date of birth for the decedent.  In an October 2012 response, the NPRC found that no change in the prior negative service certification was warranted based on the additional information provided.  

In consideration of the evidence of record, the Board concludes that the appellant is not eligible for death benefits as a matter of law because the evidence fails to establish that her deceased husband had the requisite qualifying military service.  Notably, none of the documents submitted by the appellant satisfies the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate service department.  As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits.  Further, all information submitted by the appellant has been referred to the NPRC for review and the NPRC has declined to certify the decedent's claimed service on two separate occasions.  Although the appellant contends that her deceased spouse did indeed have the requisite service for her to be eligible for VA benefits, the lack of certification from the NPRC is binding on VA.  See Duro, supra.  Accordingly, because NPRC failed to certify that the decedent had the requisite service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant's deceased spouse, on whose service she predicates her claim, has not achieved veteran status for purposes of establishing her eligibility for VA benefits.  


ORDER

The appellant is not eligible for VA death benefits; the appeal is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs