Citation Nr: 1322191 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 11-29 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The appellant maintains that her husband, who died in January 2007, had recognized service with the United States Armed Forces. Consequently, the appellant contends that she is eligible for VA death benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 administrative decision issued by the VA Regional Office (RO) in Manila, Republic of the Philippines, which in pertinent part, found that the appellant was not eligible for VA death benefits. Although the appellant initially had requested a Travel Board hearing in her substantive appeal, she subsequently withdrew that request in July 2012. See 38 C.F.R. § 20.702(e) (2012). 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). FINDING OF FACT The National Personnel Records Center (NPRC) 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 have not been met. 38 U.S.C.A. §§ 101(2), 107, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.40, 3.341, 3.102, 3.159, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The Board notes that with respect to the appellant's claim, the facts in this case are not in dispute. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the issue currently on appeal. Application of pertinent provisions of the law and regulations will determine the outcome. No amount of additional evidentiary development would change the outcome of the death benefits claim; therefore no VCAA notice is necessary. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) and Mason v. Principi, 16 Vet. App. 129, 132 (2002) [VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"]. The Board adds that general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2012). The appellant has been provided ample opportunity to present evidence and argument in support of her claim, and she has in fact done so. She has declined the opportunity to present testimony at a personal hearing. Legal Criteria The appellant contends that she is eligible for death benefits. Dependency and indemnity compensation and death pension benefits may be paid to the surviving spouse of a veteran in certain circumstances. For VA purposes, 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). For VA purposes, "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). 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); 38 C.F.R. §§ 3.1, 3.6. 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. 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). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24). 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 of persons enlisted under § 14 of Public Law 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law 190, as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). 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, United States 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. 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 compensation benefits, but not for pension benefits. 38 C.F.R. § 3.40(b), (c), and (d). Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. 38 U.S.C.A. § 501(a)(1) (West 2002). Under that authority, the Secretary has promulgated 38 C.F.R. § 3.203(a) and (c), to govern the conditions under which the VA may extend veterans' benefits based on service in the Philippine Commonwealth Army. Those regulations require that service in the Philippine Commonwealth Army (and thus veterans' status) be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department. See 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available), § 3.203(c) (requiring service department verification of service where documentation is not available). 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. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); 38 C.F.R. § 3.203(c). 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). In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based upon Philippine service unless a United States service department documents or certifies their service. Id. Persons with service in the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA non-service-connected death pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Analysis In January 2007, the appellant's spouse died. In March 2010, the appellant filed her original application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse, based on her alleged status as the surviving spouse of a "veteran." She noted that her husband served in the USAFFE from November 1941 to February 1946. In April 2010, the RO contacted the NPRC in order to verify the appellant's spouse's service. In a return response, dated in June 2010, the NPRC certified 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. The appellant subsequently submitted an Affidavit for Philippine Personnel, dated in February 1946. In the Affidavit, it was noted that the appellant's spouse was inducted into the USAFFE on November 2, 1941. It was further reported that from November 3, 1941 to January 7, 1942, the appellant's spouse was with "F" Co 2nd Bn 21st Inf. On January 8, 1942, he was separated from his unit, and from January 9, 1942 to July 31, 1945, he was a civilian. On August 1, 1945, he reported to military control and on August 2, 1945, he was processed. The appellant also submitted a copy of a certificate from the Military Police Training School, Military Police Command, Philippine Army, wherein it was noted that the appellant's husband completed military police training in September 1945. She further submitted a copy of a certificate from the Armed Forces of the Philippines, General Headquarters, dated in July 1951. In the certificate, it was indicated that the appellant's spouse served in the "F" Co 2nd Bn 21st Inf., from October 1941 to August 1945. In addition, she submitted a copy of an Application for Settlement of Claims of Filipino Veterans Under Republic Act No. 1889, dated in March 1959. In the application, the appellant's spouse stated that he served in the USAFFE. Moreover, she submitted an Extract from Service record from the Armed Forces of the Philippines, dated in July 1951, and numerous letters in which she maintained that her spouse served in the USAFFE. In September 2011, the RO submitted the aforementioned evidence to the NPRC for verification of service. See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the duty to assist requires that new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review). The NPRC responded that no change was warranted in the prior negative certification. In July 2012, the appellant submitted a Certification from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General, dated in February 2012. In the certification, it was noted that the appellant's spouse served in the USAFFE with the "F" Co 2nd Bn 21st Inf., from November 1941 to August 1945. She also submitted a copy of an Application for Mustering Out Pay, dated in August 1997, wherein it was noted that her spouse served in the USAFFE from December 1941 to March 1946, and an Enlistment and Final Endorsement, dated in February 1946. In March 2013, the RO submitted this evidence to the NPRC for verification of service. Id. The NPRC responded that no change was warranted in the prior negative certification. The NPRC has thrice 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. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro, 2 Vet App. at 530, 532. The evidence that the appellant has submitted throughout the course of the appeal fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as these are not official documents of the appropriate United States service department, and are without the official seal. These documents therefore are not acceptable as verification of the appellant's deceased spouse's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The appellant also has submitted copies of various private medical records, bills, and medication prescriptions. She has further submitted evidence pertinent to her own medical problems, including statements from her physicians and an affidavit wherein her two friends attest that she is bedridden. These documents, however, do not establish basic eligibility for VA death benefits. In this case, the service department has determined that the appellant's late 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. 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). Because the decedent's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for death benefits, and the claim must be denied based upon a lack of entitlement under the law. ORDER Entitlement to basic eligibility for VA death benefits is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs