Citation Nr: 1317780	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  12-04 185	)	DATE
	)
	)

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


THE ISSUE

Entitlement to basic eligibility to VA Dependency and Indemnity Compensation (DIC), death pension and accrued benefits.  


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel


INTRODUCTION

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).

The appellant maintains that her spouse had service from December 1941 to February 1945 in a unit of the Commonwealth Army of the Philippines that was specifically recognized by the Army Forces, Western Pacific (AFWESPAC) as being in the service of the Armed Forces of the United States.  Her spouse died on August [redacted], 1984, and the appellant is his surviving spouse.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 administrative decision of the Regional Office (RO), in Manila, Republic of the Philippines, denying basic eligibility to VA DIC, death pension and accrued benefits.  

On her February 2012 Appeal to Board of Veterans' Appeals (VA Form 9), the appellant requested a hearing in connection with her claim; however, she failed to appear for the scheduled March 2010 Board hearing and formally withdrew any such request in a signed February 2013 statement.  See 38 C.F.R. § 20.702(d) (2012). 


FINDINGS 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 DIC, death pension and accrued benefits.  38 U.S.C.A. §§ 101, 107, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to assist and notify

VA has a duty to notify and assist appellants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  These duties are not applicable to this appeal because the appellant has no legal entitlement to the benefit sought, as a matter of law.  Nelson v. Principi, 18 Vet. App. 407, 409-10 (2004); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant).

Nonetheless, the RO assisted the appellant in the development of her claim.  The RO made an initial request for service department verification of her spouse's service.  When it received additional documentation from the appellant, it submitted that evidence for service department verification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (holding that VA has a duty to request service department verification of all new and relevant evidence submitted by an appellant to show service).  There are no indications in the record of additional evidence that remains outstanding.

Applicable Law

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.").

Background and Analysis 

On her December 2011 Application for VA benefits, the appellant notes her surviving spouse's service as being from December 8, 1941, to February 1945, as part of the 7th Military District.  The application is also accompanied by a certificate purportedly issued by the United States Forces in the Philippines, confirming such issued on the "14th day of February, in The Year of Our Lord, Nineteen Hundred and Forty XXXX Six," altering the pre-printed year from 1945 to 1946.  

The record contains numerous statements from the appellant purporting to verify the nature of her spouse's service.  In a February 2012 statement she states that her spouse had recognized service as part of the 7th Military District of the U.S. Forces in the Philippines until 1976, after its dissolution in 1942.  

The National Personnel Records Center reported that the Veteran did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the Service of the United States Armed Forces, at any time prior to or subsequent to June 30, 1946.  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). 


ORDER

Entitlement to basic eligibility to VA DIC, death pension and accrued benefits is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs