Citation Nr: 1327117 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-18 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to Department of Veterans Affairs (VA) death benefits. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The appellant's deceased spouse, from whose service the appellant claims eligibility for VA death benefits, did not have any credible service in the United States Armed Forces. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The claim was remanded by the Board in November 2011, and all actions required by that remand order have been accomplished. FINDING OF FACT The appellant's spouse served in the Philippine Military during the Second World War; there is no indication provided by official service department records that the appellant's spouse ever had service in a component of the Armed Forces of the United States, to include any service in the Philippine Commonwealth Scouts or Recognized Guerilla Forces. CONCLUSION OF LAW There is no legal entitlement to VA death benefits, as the appellant's spouse has not met the legal definition of a "Veteran" for the purposes of basic entitlement to VA benefits. 38 U.S.C.A § 101(2) (West 2002); 38 C.F.R. § 3.1(d), 3.9, 3.40, 3.203 (2012); Selley v. Brown, 6 Vet. App. 196, 198 (1994) . REASONS AND BASES FOR FINDING AND CONCLUSION A "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); 38 C.F.R. § 3.1(d). A "Veteran of any war" is defined as any Veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). 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. Service 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. 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 or burial benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(c) and (d). Active service will be the period certified by the service department. 38 C.F.R. § 3.9 (a) and (d). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains 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). The United States Court of Appeals for Veterans Claims (Court) has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces." See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant in this case asserts that her deceased spouse had the requisite service to qualify her for eligibility to VA death benefits. She has submitted documentation from the Government of the Philippines which shows service with the Philippine Army for her spouse between January 1941 and March 1945. Due to this, the appellant is recognized as having had service in the Philippine Military by the government of that nation. The Board, in its remand of November 2011, asked that the National Personnel Records Center (NPRC) be contacted for the purposes of determining if C.I had any credible service in the Armed Forces of the United States, to include any service in Philippine Commonwealth Army/Recognized Guerrilla forces. It was also asked that the claimant be verified as either the spouse or the daughter of the Veteran, as there was some conflict between the initial application for benefits and later-submitted correspondence by the appellant. In the most recent Supplemental Statement of the Case (SSOC), issued subsequent to the Board's remand, the RO appears to have established that the appellant is the spouse of C.I. (the alleged Veteran). Regarding a response from the NPRC, it was stated that the service department (Army) could not confirm that the appellant had any service under U.S. command in the Philippine Commonwealth Army and/or Recognized Guerilla forces. That is to say, the NPRC returned a finding that the alleged Veteran (spouse of the appellant) had no service which would qualify as active duty in the U.S. Armed Forces (for either pension or DIC purposes). VA is bound by service department determinations regarding what constitutes service in the Armed Forces of the United States. Indeed, while an appellant may submit proof of service in the Armed Forces directly to VA (i.e. it does not need to come from the service department directly), the submitted documentation must be issued by the service department in order to verify active service. 38 C.F.R. § 3.203. In this case, the appellant has submitted documentation from the Republic of the Philippines which shows that her spouse served in the Armed Forces of that nation. This evidence remains uncontradicted except for the appellant's unsubstantiated contentions to the contrary. The appellant has submitted lay statements of the grandson of the alleged Veteran, which purport to show his service under U.S. command during the Second World War. Unfortunately, there is no official service department documentation of Philippine service which would qualify as service in the U.S. Armed Forces, and the NPRC determination expressly found that the appellant's spouse had no recognized service. As this is the case, the Board fully recognizes the service that the appellant's spouse gave the Republic of the Philippines during World War II. The Board cannot, however, recognize the appellant's spouse as ever having served in a unit which would be part of the Armed Forces of the United States, and thus cannot extend VA benefits to her as a surviving spouse. Indeed, as this most basic element of a claim for entitlement to VA death benefits has not been met, the Board must conclude that there is no legal entitlement to benefits, and the claim is denied. 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) impose obligations on VA in terms of its duty to notify and assist claimants. Inasmuch as the Board has found that the law, and not the evidence, is dispositive in this case, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The service department cannot verify that the appellant's spouse was ever a member of the Armed Forces of the United States, to include service in the Philippine Commonwealth Scouts or Recognized Guerilla Forces, and the appellant has not provided any service department verification which would contradict this determination. As such, there is no way in which the appellant could ever be legally entitled to any type of VA death benefits (to include DIC or pension). Thus, VCAA notice is not required. ORDER Legal entitlement to Department of Veterans Affairs (VA) death benefits has not been established; the claim is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs