Citation Nr: 1330788 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-30 333 ) 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. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had service in the Regular Philippine Army from December 1941 to May 1942 and from August 1942 to October 1945. He died in December 2007. The appellant is advancing her appeal as the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and January 2010 decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2008, the appellant submitted numerous statements to the RO in which she referred to the June 2008 decision; however, the RO took no action on those submissions. She submitted a new claim in December 2009, which the RO denied in the January 2010 decision. In December 2010, the appellant submitted a statement in response to the January 2010 decision which the RO characterized as a notice of disagreement. The RO issued a statement of the case in July 2011 and the appellant perfected her appeal in September 2011. The RO issued a supplemental statement of the case in July 2013. The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed notice of disagreement, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The actual wording of the communication and the context in which it was written must be considered in determining whether it constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559 (1999). Reviewing the appellant's July 2008 statements, the Board finds that submission is a timely filed notice of disagreement as to the June 2008 RO decision. The issue of entitlement to nonservice-connected death pension benefits is properly before the Board. On her substantive appeal received in September 2011, the appellant did not check any boxes to indicate whether she wanted a hearing. In a statement received in March 2012, however, she requested a personal hearing. A May 21, 2012 hearing was scheduled, but the appellant failed to appear. A May 24, 2012 report of general information shows that the appellant called stating that she had just received the letter regarding her scheduled appointment and requested that the hearing be rescheduled for June 18, 2012. In a letter received in May 2012, she reiterated what she had stated over telephone. In a statement received in June 18, 2012, the appellant stated, "I am satisfied with my hearing." Correspondence received from both the appellant and her daughter in July 2012 mention a visit to the RO. However, there is no transcript of record, and there are no indications in the Veteran's claims file and Virtual VA file that any hearing was held. A July 2013 supplemental statement of the case is silent regarding any hearing. Thus, it appears to the Board that no hearing was held when the two had visited the local RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Verification of service shows that the Veteran served in the Regular Philippine Army from December 1941 to May 1942 and from August 1942 to October 1945. CONCLUSION OF LAW The criteria for basic eligibility to VA nonservice-connected death pension benefits have not been met. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. §§ 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); and Hupp v. Nicholson, 21 Vet. App. 342 (2007). As will be seen below, the Veteran does not have qualifying service for nonservice-connected death pension purposes. Where the law, and not the evidence, is dispositive of a claim, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The surviving spouse of a veteran is entitled to receive VA improved death pension benefits if the veteran had qualifying service under 38 U.S.C.A. § 1521(j) (West 2002). "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). Service in the Commonwealth Army of the Philippines from and after the dates and hours, respectively, 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, DIC, and burial allowance. 38 C.F.R. § 3.40(c). Service as a guerilla under a commissioned officer of the United States Army, Navy or Marine Corps, or under a commissioned officer of the Commonwealth Army recognized by and cooperating with the United States Forces is included for compensation, DIC, and burial allowance. 38 C.F.R. § 3.40(c)-(d). Service as a guerilla by a member of the Philippine Scouts or the Armed Forces of the United States is considered as service in his regular status and is included for pension, compensation, DIC, and burial allowance. 38 C.F.R. § 3.40(a), (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). Service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant asserts that her husband received "disability pension" and that the benefits should be transferred to her by virtue of being his spouse. The Veteran was not in receipt of pension, but rather in receipt of benefits for two service-connected disabilities and a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) before his death. Additionally, whether the surviving spouse receives pension benefits is contingent on the Veteran's type of service. A June 1952 letter from the Veteran, a July 1952 medical certificate, and an affidavit received in August 1952 mention that the Veteran was a USAFFE-Guerilla, which would entitle the appellant to pension benefits, among others. However, verification of the Veteran's service shows that he had unrecognized Guerilla service from October 1943 to September 1944. Verification showed that he was a member of the Regular Philippine Army from December 1941 to May 1942 and from August 1942 to October 1945, which only entitles the appellant to compensation, DIC, and burial allowance pursuant to 38 C.F.R. § 3.40(c). Thus, there is no legal basis on which the appellant's claim for death pension benefits can be based. The Board acknowledges receipt of the appellant's application for Social Security Administration (SSA) benefits. Although SSA records are outstanding, the Board does not believe that additional development is necessary as these records are not pertinent to the claim. Again, the Veteran does not have requisite service to allow for the grant of nonservice connected benefits to his spouse. The Board further acknowledges a letter received in August 2013 from the appellant's daughter who expressed the unfairness of the law and proudly noted that her father served in World War II. The Board recognizes the Veteran's honorable World War II service. However, as the law, (and not the evidence) is dispositive, the appeal is denied due to the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is bound by 38 U.S.C.A. § 107(a), and therefore has no choice but to deny the appellant's death pension claim. See 38 U.S.C.A. §§ 501(a), 7104(c); 38 C.F.R. § 19.5. ORDER Entitlement to non service connection death pension benefits is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs