Citation Nr: 1320859 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 06-17 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to dependency and indemnity compensation (DIC)/service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had recognized active service in the Philippine Commonwealth Army from December 1941 to May 1942, and died in September 1944. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen the appellant's claim for entitlement to service connection for the cause of the Veteran's death. In June 2009 the Board reopened the claim, and remanded it for additional development. In September 2010, the Board again remanded the claim. 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. The Veteran had active service in the Philippine Commonwealth Army from December 1941 to May 1942; he was killed in September 1944 (while not on active duty). 2. During the Veteran's lifetime, service connection was not established for any disability. 3. It is not shown that the cause of the Veteran's death was due to disease or in jury that was incurred or aggravated in service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of her claim. Letters dated February and April 2005 explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. The appellant did not receive a letter that informed her of what was needed to substantiate her claim in accordance with Hupp. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court held in essence that except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim, the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. Here, the circumstances are such that the customary Hupp notice does not have application. The Veteran was killed, and the dispostive factor is whether or not he was on active duty (in line of duty) when his death occurred. It is clear from the appellant's arguments that she is aware that, to substantiate her claim, she needs to establish that the Veteran was on active duty when he was killed. She has not alleged prejudice from a notice defect, and the Board finds that she is not prejudiced by a notice deficiency. The appellant has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal criteria, factual background, and analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. The Board also viewed Virtual VA (VA's electronic data storage system), and found no pertinent records therein. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Dependency and Indemnity Compensation is payable if a Veteran died while on active duty service or from disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1310(a)(b); 38 C.F.R. § 3.312. In an affidavit dated in May 1946, F.G. and F.M. related they knew the Veteran and that he had been murdered with his unit in September 1944. The service department has certified that the Veteran was in beleaguered status from December 18, 1941, through May 6, 1942; missing from May 7, 1942, through May 10, 1942; and in no casualty status (i.e., not in line of duty) from May 11, 1942, through September 25, 1944. It was noted he was not entitled to pay for the latter period, and also that he was with his unit prior to its disbandment, apparently in May 1942. The Department of the Army, responding to a request for information from the VA, indicated the Veteran served in the 102nd Infantry. He was not entitled to pay for the period from May 11, 1942, through September 25, 1944 because he was not performing active military service. An affidavit dated May 1946 reflects that J.R. and T.R. asserted the Veteran was called to active duty in December 1941, and that he was assigned to the 102nd infantry. A certification dated in February 2005 from the Armed Forces of the Philippines, Office of Adjutant General states that the Veteran served with the 108th infantry. It was noted he was missing from May 7, 1942 to June 14, 1942, and that he died in September 1944, which was the termination of his casualty status. A March 2005 letter from the National Archives and Records Administration states "[t]he records show that [the Veteran] served as a member of the Philippine Commonwealth Army, in the service of the Armed Forces of the United States from December 18, 1941 to September 25, 1944, the date of death. This service is not considered as active service in the United States Army." An undated application for membership in the Association of War Widows of the Philippines was received in June 2005. The appellant indicated the Veteran had served in the 102nd infantry. In April 2005, the service department was again requested by the VA to provide information concerning the Veteran's death. It was noted he had served with the 102nd infantry regiment. In response, the National Personnel Records Center provided the same information previously submitted concerning the Veteran's service. This showed he was not considered on active duty from May 11, 1942, through September 25, 1944. In February 2013, the VA again requested verification of the Veteran's service. The request indicated the Veteran had served with the 108th infantry regiment. The information received from the National Personnel Records Center consisted of duplicate records reflecting the Veteran's service with the 102nd infantry, and that he was not considered on active duty from May 11, 1942, through September 25, 1944. The information also includes a statement from Headquarters, United States Army Forces Western Pacific that noted the Veteran had served with the 102nd infantry from December 18, 1941 through May 10, 1942; that he was a civilian who was unemployed from May 11, 1942, through September 24, 1944; and that he was killed on September 25, 1944. 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 United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Venturella v. Gober, 10 Vet. App. 340 (1997). At the outset, it is noteworthy that the Veteran was killed in September 1944, and that it is not alleged (or shown or suggested by the record) that he died from disability due to disease or injury that was incurred or aggravated during the certified period of active duty service (from December 1941 to May 1942). He had not established service connection for any disability during his lifetime. The appellant's theory of entitlement to DIC is that the Veteran died on active service (in line of duty). It is not in dispute that the Veteran had active service from December 1941 to May 1942. The dispositive question is whether or not his active duty status continued beyond May 1942, and until he was killed (in September 1944), as alleged. Repeated (and exhaustive) efforts by the VA to have the service department recertify the Veteran's active service to encompass the period from May 1942 until the Veteran was killed in September 1944 have consistently produced responses from the service department to the effect that the Veteran was not on active duty when he was killed in September 1944. The appellant had provided information from the Armed Forces of the Philippines which suggests that the Veteran served with the 108th infantry, not the 102nd, as previously believed. When VA sought information from the National Personnel Records Center concerning this unit, the response was again that the Veteran served with the 102nd infantry, and was not on active duty at the time of his death. As is noted above, this finding by the service department is binding on the VA. The Board concludes, therefore, that the Veteran was not on active duty when he was killed in September 1944. As the preponderance of the evidence shows that the Veteran was not on active duty service when he was killed in September 1944, and did not die due to disability from disease or injury that was incurred or aggravated during his recognized period of active duty service, service connection for the cause of his death (and entitlement of the appellant to DIC) is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the appellant's claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Entitlement to DIC/service connection for the cause of the Veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs