Citation Nr: 1319357	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  09-33 734	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Basic eligibility for Department of Veterans Affairs death benefits.  


REPRESENTATION

Appellant represented by:	George F. Cargando, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and daughter



ATTORNEY FOR THE BOARD

Timothy D. Rudy, Counsel


INTRODUCTION

The appellant claims that her deceased husband had military service in the United States Armed Forces during World War II.  The appellant seeks surviving spouse benefits.  

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating letter by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO), denying the claim.  In January 2013, the appellant and her daughter testified before the Board at a hearing at the RO.


FINDING OF FACT

The National Personnel Records Center has certified that the appellant's deceased 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 requirements for basic eligibility for VA death benefits based on qualifying service by the appellant's late husband have not been met.  38 U.S.C.A. §§ 101(2), 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2012).  

REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004).  Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim.  

The appellant contends that her late husband served with the United States Armed Forces, Far East (USAFFE), from November 1941 to April 1946.  On that basis, she claims entitlement to threshold eligibility for VA dependency and indemnity (DIC) compensation, death pension, and accrued benefits.  

DIC and death pension benefits may be paid to the surviving spouse of a veteran in certain circumstances.  

A surviving spouse means a person of the opposite sex whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.  38 C.F.R. § 3.50(b) (2012).  

Marriage means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued.  38 C.F.R. § 3.1(j) (2012).  

Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service.  38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012).  In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits.  38 C.F.R. § 3.7 (2012).  

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.  38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40 (2012).  

Service in the Philippine Commonwealth Army, and thus Veteran status, must be proven with either official documentation issued by a United States service department or verification of the claimed service by such a United States department.  38 C.F.R. § 3.203(a), (c) (2012).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  

Therefore, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  

The RO requested verification of service by the applicable United States service department using the appellant's husband's full name, place of birth, date of birth, service number, dates of service, and unit designations provided by the appellant in her supporting documents.  The RO noted that the appellant's husband was listed in the Revised Reconstructed Guerilla Roster.  However, in December 2008, March 2010, and February 2013 the National Personnel Records Center (NPRC) responded that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Consequently, the RO determined that the appellant's husband did not have the requisite service to establish eligibility for VA benefits and, thus, denied the claim.  

At the time of the Board hearing, the appellant submitted additional documentation contesting the RO's decision and attesting to her husband's service in the recognized armed forces.  However, none of that submitted documentation and lay evidence qualifies as acceptable proof of service.  38 C.F.R. § 3.203 (2012).  On the contrary, that evidence was not issued by a United States service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including DIC benefits.  

NPRC has duly considered the appellant's application for VA benefits and certified on three separate occasions that her husband had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).  

The Board concludes that the appellant's husband did not meet the requisite legal requirements for eligibility for VA DIC, death pension, and accrued benefits.  Therefore, her claim for benefits must be denied.  In reaching that conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of her belief that she is entitled to VA benefits.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).  


ORDER

Basic eligibility for VA death benefits is denied.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs