Citation Nr: 1334269	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-40 561	)	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.


REPRESENTATION

Appellant represented by:	Eduardo P. Fernandez, One Time Agent


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel 



INTRODUCTION

The appellant, who is the decedent's surviving spouse, seeks entitlement to VA death pension benefits on the basis of her husband's service in the Republic of the Philippines during World War II.  The death certificate shows that the appellant's husband died in March 1995.

In June 2009, the RO denied the appellant's claim of entitlement to VA death pension benefits, accrued benefits, and dependency and indemnity compensation benefits.  The appellant subsequently indicated that she was only appealing the denial of the nonservice-connected death pension benefits.  Thereafter, a statement of the case was issued in August 2010 with regard the issue of entitlement to nonservice-connected death pension, and the appellant perfected her appeal in September 2010, again indicating that she was only appealing the issue of entitlement to nonservice-connected death pension benefits.  In her September 2010 substantive appeal, the appellant also asked for a hearing before at Veterans Law Judge at VA Central Office in Washington, D.C.  

In May 2013, the Board of Veterans' Appeals (Board) advanced this matter on the docket due to the appellant's advanced age.  

The appellant was scheduled for the requested hearing at the Central Office in September 2013 and failed to appear.  She has not provided any reason for her failure to appear.  As a result, the Board is proceeding with the current appeal.  

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

The decedent's service did not satisfy the requisite service for the appellant's basic eligibility for VA death pension benefits.


CONCLUSION OF LAW

The legal criteria for basic eligibility for VA nonservice-connected death pension benefits are not met.  38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1 , 3.2, 3.3 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. 

Concerning the claim for nonservice-connected death pension benefits, as will be explained below, in the present case, there is no legal basis upon which the benefits may be awarded and the appellant's claim must, regrettably, be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The provisions of VCAA have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).

The law authorizes the payment of nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled.  38 U.S.C.A. §§ 1502, 1521.  The Secretary shall pay pension for non-service-connected disability or death for service to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in section 1521(j) of title 38, U.S. Code, or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability.  38 U.S.C.A. § 1541. 

In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the individual in respect to whom pension is claimed be a veteran who had active military, naval, or air service.  See 38 U.S.C.A. §§ 101(2), (24), 1521(a),(j); 38 C.F.R. §§ 3.1, 3.6. 

The term "Veteran" is defined as 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).  "Active military, naval, and air service" includes active duty.  "Active duty" is defined as full-time duty in the Armed Forces.  38 C.F.R. § 3.6(a),(b).  "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1. 

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 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, 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 benefits.  38 C.F.R. § 3.40(b),(c), and (d). 

Persons with service in the Philippine Commonwealth Army, USAFFE, 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 nonservice-connected disability pension.  See 38 U.S.C.A. § 107. 

In support of her claim, the appellant submitted an affidavit from the Office of the Republic of the Philippines dated in August 1988 signed by a Commanding Officer L. C., who claimed that he served as an active guerilla officer with the rank of Captain.  He indicated that Infantry designated as "I" Company Commander MPAT engaged in guerrilla warfare and activities against the Japanese Imperial Forces and that the decedent was an active member of said outfit under his command with the rank of Private for the time period from December 17, 1942, to April 30, 1945.  L. C. indicated that they had several encounters with the enemy.  

Also submitted in support of the claim was a document entitled "Veterans Claims Commission" indicating that the decedent served as a Private in the S. O. Santos Regiment (MFAT) from December 1942 to April 1945.  Also submitted was a document entitled "Application Form Veterans Regular Force " date October 2009, identifying the unit to which the Veteran was attached as "I" Company 3rd Battalion, Santos Regiment Marking Filipino American Troops, Commanding Officer L. C., with a discharge date of April 30, 1945.  

The above information was sent to the National Personnel Records Center in February 2013 and in March 2013 a response was received indicating that no change was warranted in negative certification.  

The service department's determination is binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  The law specifically excludes such service mentioned above for purposes of entitlement to nonservice-connected pension benefits.  Cacalda v. Brown, 9 Vet. App. 261 (1996).  The Board finds that the appellant is not eligible for death pension benefits. 

The appellant has not submitted any information contrary to that provided to and used by the service department in its verification of the decedent's service.  In addition, the Board notes that the official documents do not indicate, and the appellant has not contended, that the decedent had any service that would render her eligible for death pension.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994); see also 38 C.F.R. § 3.8(a). 

In this case, the law is dispositive, and basic eligibility for death pension benefits is precluded based upon the service of the decedent; therefore, eligibility for nonservice-connected death pension benefits must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


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ORDER

Entitlement to nonservice-connected death pension benefits is denied.




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs