Citation Nr: 1320595	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  12-25 499	)	DATE
	)
	)

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


THE ISSUE

Entitlement to nonservice-connected death pension benefits.


WITNESS AT HEARING ON APPEAL

Appellant and F.O.


ATTORNEY FOR THE BOARD

M. Taylor, Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 

The decedent had recognized guerilla service in the United States Armed Forces from March 1945 to September 1945.  He died in 2010.  The appellant seeks benefits as his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 administrative decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Manila, the Republic of the Philippines.

In January 2013, the appellant testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  The appellant waived initial agency of original jurisdiction (AOJ) consideration of additional evidence submitted at the hearing.  


FINDING OF FACT

The decedent did not possess the requisite service for his spouse to qualify for VA nonservice-connected death pension benefits. 


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected death pension benefits have not been met.  38 U.S.C.A. §§ 101, 107, 1521, 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.3, 3.6, 3.7, 3.40, 3.41 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

There is no legal basis upon which nonservice-connected death pension benefits may be awarded.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).

II.  Eligibility for pension benefits

The appellant seeks nonservice-connected death pension benefits.  At the outset, there is no dispute that the appellant is the decedent's surviving spouse.  No discussion in this regard is needed.

VA law authorizes the payment of a pension to a Veteran of wartime who has the requisite service and who is permanently and totally disabled from one or more nonservice-connected disabilities not due to the Veteran's own willful misconduct.  38 U.S.C.A. §§ 1502, 1521.  "Veteran" means 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); 38 C.F.R. § 3.1(d).  "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war.  38 C.F.R. § 3.1(e).

A Philippine Veteran is limited by law to the award of a narrowly defined set of benefits.  Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits.  38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(a), (b).

Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States, also referred to as United States Armed Forces in the Far East (USAFFE) and includes recognized guerilla service, is qualifying service for compensation, DIC, and burial allowance.  However, it is not qualifying service for VA pension benefits.  38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41.  Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits.  See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203.  

Service in the Philippine Commonwealth Army (and thus veterans' status) must be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department.  38 U.S.C.A. § 501(a)(1) (West 2002); 38 C.F.R. § 3.203(a), (c).  Importantly, only service department records can establish if and when a claimant has qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  The service department's findings are binding and conclusive upon VA.  VA does not have the authority to alter the findings of the service department.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Thus, if the service department does not 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 not eligible for VA benefits based on Philippine service unless a US service department documents or certifies their service.  Soria, 118 F. 3d at 749.

In this case, the decedent does not have qualifying service.  Thus, the appellant's appeal must be denied as a matter of law.  

Here, a December 1969 certification from the National Personnel Records Center along with the accompanying USAAC Form 632 reflects recognized guerilla service from March 1945 to September 1945.  VA is bound by the service department's certification as to the type of military service.  Duro, 2 Vet. App. 530.  There is no official documentation issued by a United States service department or verification of any of the decedent's service for the appellant to qualify for VA nonservice-connected death pension benefits.  38 U.S.C.A. § 501(a)(1) (West 2002); 38 C.F.R. § 3.203(a), (c).  

The Board acknowledges the appellant's argument that the decedent had guerrilla service, was awarded benefits from the Social Security Administration based on his service during World War II, and that other Philippine documents confirm the decedent's guerrilla service.   Nonetheless, as noted above, pension benefits are not available for recognized guerrilla service.  38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.7, 3.40, 3.41, 3.203.  Further, the appellant does not assert, and the record does not reflect, that the decedent had other qualifying service such that the eligibility requirements delineated above would be satisfied.  38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41.  Finally, the additional documents submitted do not satisfy the criteria set forth by section 3.203.  The service department's finding is determinative.  Accordingly, nonservice-connected pension benefits pursuant to Title 38, Chapter 15 of the United State Code are not warranted, as the decedent lacked the required military service to be eligible.  

The decedent's service does not satisfy the statutory or regulatory requirements which define "active military service" requirements necessary to establish basic eligibility for entitlement to nonservice-connected death pension.  See 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(b).  He had recognized guerilla service.  As a matter of law, recognized guerilla service is excluded from the definition of "active military service," as defined for purposes of the statutory provisions governing pensions administered by VA.  38 U.S.C.A. §§ 1501-1562.  Consequently, there is no legal basis on which the appellant's claim can be granted.  See 38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40, 3.41.  

The Board notes that an unsuccessful claimant who believes there is reason to dispute the report of the service department or the contents of military records can pursue such disagreement with the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).


ORDER

Entitlement to nonservice-connected death pension benefits is denied. 



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs