Citation Nr: 1331449	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-18 415	)	DATE
	)
	)

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


THE ISSUE

Legal entitlement to VA death benefits.


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel


INTRODUCTION

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision, from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for legal entitlement to VA benefits on the part of her late husband by virtue of service performed as a member of the Commonwealth Army of the Philippines, including the recognized guerrillas, in the Armed Forces of the United States.  The appellant's spouse passed away in December 1991.

The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also his file on the Virtual VA and VBMS system to insure a total review of the evidence. 

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).


FINDINGS OF FACT

1.  The appellant's spouse died in December 1991.

2.  The service department has three-times 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 U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The criteria for entitlement to VA death benefits have not been met. 38 U.S.C.A. §§ 101, 107, 501(a) (West 2002);  38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant claims that the service of her late spouse meets the requirements for eligibility for VA benefits on the basis that he was a "veteran."  The provisions of 38 U.S.C.A. §§ 1310 to 1318, pertaining to dependency and indemnity compensation benefits, and 38 U.S.C.A. § 1542, pertaining to death pension benefits, require that the deceased person shall have been a veteran.  The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013).

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt.  See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary of VA.  38 U.S.C.A. § 107 (West 2002).  

Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except for specified benefits which do not include death pension benefits authorized by chapter 15, title 38, United States Code.  38 U.S.C.A. § 107(a) (West 2002); 38 C.F.R. §§ 3.40, 3.41 (2013).

The Secretary is authorized by statute to prescribe "regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits" under the laws administered by VA."  38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, the Secretary has prescribed regulatory provisions governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.  

That regulation provides that for the purpose of establishing entitlement to 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 if the evidence meets 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 the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2013).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for ninety days for a line of duty disability.  38 C.F.R. § 3.203(b).  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, the VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2013).

Findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  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.

The National Personnel Records Center (NPRC) certified in October 2010, February 2012, and April 2012, 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.  VA is bound by that certification.  

The Board has carefully considered the documentation submitted by the appellant, however, it fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service.  The documents submitted by the appellant were not issued by the service department, nor do they contain the necessary information to establish entitlement to the benefits sought.  Therefore, the documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by the Secretary of VA

In addition, NPRC has considered the information contained in that documentation and nonetheless 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 Armed Forces of the United States.  Again, the Board is bound by this certification.  See Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA").  

As the service department has certified that the appellant did not have the requisite service, there is no legal entitlement to death benefits based upon that service, and payment is not warranted.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Finally, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In cases that are based upon an individual having recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status.  Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases).  This was done by a letter in September 2010.  

Moreover, in October 2010, the RO explained that verification of military service was the responsibility of the NPRC and its findings were binding on VA.  Because NPRC had 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 U.S. Armed Forces during World War II, the appellant was not legally entitled to death benefits.  

After affording the appellant the opportunity to submit additional evidence and argument, the RO reconsidered the appellant's claim in a February 2012 statement of the case (SOC) and in a May 2012 supplemental statement of the case.  See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006).

The service department has on three occasions (October 2010, February 2012, and April 2012) 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 U.S. Armed Forces during World War II.  VA is bound by this certification.  See Soria, 118 F.3d at 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

In light of the binding certifications, any notification error is non-prejudicial as the appellant is not entitled to the benefits sought as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229 (2003); see also Palor, 21 Vet. App. at 332-33 ("Therefore, in assessing whether the appellant was prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status, the Court can conclude only that because the appellant is currently ineligible for VA benefits as a matter of law based on the [service department's] refusal to certify the appellant's service, he was not prejudiced by the section 5103(a) notice error").

VA also has a duty to assist claimants in the development of a claim.  This includes assisting the claimant in procuring service treatment records and other relevant treatment records and providing a VA examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).

A review of the record indicates that all necessary evidence relative to this claim has been obtained and associated with the claims file.  The service department has on three occasions 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 U.S. Armed Forces during World War II.  The initial negative certification was in October 2010.  

After the appellant submitted additional information, the RO re-contacted the service department on two occasions requesting re-verification of service for the appellant's deceased spouse.  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).  In requesting the recertifications, the RO provided NPRC with additional pertinent evidence, including copies of Philippine Army documents submitted by the appellant.  

In February 2012, and again in April 2012, the service department responded that no change was warranted in the prior negative certification.  Since the most recent negative certification, the appellant has produced no additional information which would warrant a fourth request to NPRC.  Additionally, given the nature of the issue on appeal, the Board finds that there is no need for a VA medical opinion.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).

For the reasons set forth above, no further notification or development action is necessary on the issue now being decided.  No reasonable possibility exists that any additional assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).  In addition, the Court has held that the VA's duties to notify and assist are not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  




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ORDER

Legal entitlement to VA death benefits is denied. 



____________________________________________
L. HOWELL 
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs