Citation Nr: 1319476	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  10-43 194	)	DATE
	)
	)

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


THE ISSUE

Basic eligibility for VA death benefits. 



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The appellant alleges that her late husband had service as a recognized guerrilla in the Philippines during World War II.  He died in February 2002, and the appellant is his widow.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the RO in Manila, the Republic of the Philippines.

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).


FINDINGS OF FACT

1.  In January 2010 and March 2013, the National Personnel Records Center (NPRC) certified that the decedent did not have service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the Armed Forces of the United States.

2.  The decedent's Philippine service does not qualify as requisite service to provide eligibility to the appellant for VA death benefits. 


CONCLUSION OF LAW

The criteria for eligibility for VA death benefits, based on qualifying service by the decedent, have not been met.  38 U.S.C.A. §§ 101, 107, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  To this end, VA must provide notice informing the claimant of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 

Additionally, in claims for DIC benefits, VCAA notice must include:  (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected.  See Hupp v. Nicholson, 21 Vet. App. 342 (2007). 

VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, and the claimant is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The RO provided the appellant with pre-adjudication notice by a letter dated in September 2009.  Additional notice was sent in January 2013 and the claim was readjudicated in an April 2013 supplemental statement of the case.  

VA has assisted the appellant in attempting to verify the decedent's reported military service.  All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. 

Based on the foregoing, the Board finds that, in the circumstances of this case, any additional development or notification would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430   (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).  Thus, the Board finds that VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.  No additional assistance or notification to the appellant is required based on the facts of the instant case. 


Analysis

The appellant is seeking entitlement to VA death benefits as the surviving spouse of an individual who she claims had service in the United States Armed Forces in the Philippines during World War II.  

The law provides Dependency and Indemnity Compensation (DIC) benefits for a spouse of a Veteran who dies from a service-connected disability.  See 38 U.S.C.A. § 1310.  A service-connected disability is one that was incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  See 38 C.F.R. § 3.312(a).  Non-service-connected death pension is payable to the surviving spouse of a veteran of certain wartime service, under 38 U.S.C.A. § 1541 (West 2002).

For purposes of any of the above determinations, it is required, in part, that the decedent be a veteran and have active military, naval or air service.  See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j); 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 under conditions other than dishonorable.  38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty.  "Active duty" is defined as full-time duty in the Armed Forces.  38 C.F.R. § 3.6(a), (b).  "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. 

Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits.  This provision does not apply to officers who were commissioned in connection with the administration of section 14 of Public Law No. 190, 79th Congress (Act of Oct. 6, 1945).  All enlistments and re-enlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law No. 190, because it constituted the sole authority for such enlistments during that period.  38 C.F.R. § 3.40(b). 

Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for service-connected compensation benefits, but not for non-service-connected pension benefits.  38 C.F.R. § 3.40(b), (c), and (d). 

The following certifications by the service departments will be accepted as establishing guerrilla service:  (1) recognized guerrilla service; (2) unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army.  This excludes civilians.  See 38 C.F.R. § 3.40(d)(1), (2). 

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions:  (1) the evidence is a document issued by the United States service department; (2) the document contains the 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 in it is accurate.  38 C.F.R. § 3.203(a).  However, where the appellant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203, the VA shall request verification of service from the service department. 

In cases for VA benefits where the requisite Veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA.  See 38 C.F.R. § 3.203(c), Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F. 3d at 749.  In short, under 38 C.F.R. § 3.203, a claimant is ineligible for VA benefits based on Philippine service unless a United States service department documents or certifies his or her service.  Soria, 118 F. 3d at 749.

In support of her claim, the appellant has provided VA with statements and documents from official Republic of the Philippines sources and agencies, to the effect that the decedent was a guerrilla in the Philippines during World War II.  She also provided VA with her own statements in which she made similar assertions, copies of bank documents, and copies of documents showing that she receives an old age pension from the Philippines Veterans Affairs Office.

In her initial DIC claim, the appellant enclosed an April 2000 certification by the Armed Forces of the Philippines, Office of the Adjutant General, to the effect that the decedent was a recognized guerrilla from August 1944 to June 1945, in K Co., 3rd Battalion, 65th Infantry Combat Team 6th MD, in the organization of Peralta's Guerrilla.  It was noted that he joined this organization in August 1944.

Records on file show that the decedent and the appellant began living together as husband and wife in June 1954.

In a September 2009 statement, the appellant said that according to her husband's records and her knowledge, he was an "active military man" during World War II and fought against the Japanese.  In April 2010, she submitted photocopies of the decedent's identification cards showing that he was a member of the Veterans Federation of the Philippines.  She asserted that the decedent was an active Philippine guerrilla during World War II.

However, the appellant has never provided VA with any similar material regarding her husband's military service during World War II from an official agency of the United States government.

The decedent's service has not been verified by the National Personnel Records Center (NPRC).  In fact, the NPRC has declined to certify the decedent's alleged service on two occasions.  In January 2010, the NPRC indicated that the decedent "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces."  In March 2013, the NPRC reiterated there was no change warranted in the prior negative certification verification.  Multiple requests were submitted to ensure that all possible names used by the decedent, as reported by the appellant in written statements, a Philippine Army certification and photocopies of identification cards, were investigated.  Detailed information regarding the dates, locations, and units of the alleged service were submitted and reviewed, and all identifying information, such as date of birth, parentage, and place of birth, were also considered.  All information submitted by the appellant has been referred to the NPRC for review.  Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).

The appellant contends that her husband did indeed have the requisite service. Unfortunately, where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The lack of certification from the NPRC is binding on VA over the submitted certification from the Philippine Army, dated in April 2000.


ORDER

Basic eligibility for VA death benefits is denied.



____________________________________________
KELLI A. KORDICH 
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs