Citation Nr: 1337420	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  05-14 918	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether the appellant is legally entitled to Department of Veterans Affairs (VA) death benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The appellant is the surviving spouse of a citizen of the Republic of the Philippines.  She seeks VA benefits as a surviving spouse based on her deceased husband's honorable service in the Philippine Army from September 1941 to June 1946.  Her husband died in April 1985.  

This case originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which denied eligibility for VA benefits for a surviving spouse.  

As an initial matter, the Board notes that the file currently before it is a rebuilt claims file and it is on the basis of evidence contained in this rebuilt claims folder that all determinations in this case have been based. 

In a decision in June 2006, the Board determined that the criteria for eligibility for VA death benefits had not been met, and, accordingly, denied the appellant's appeal for legal entitlement to VA death benefits.  The appellant subsequently appealed that decision to the United States Court of Appeals for Veterans Claims, which, in a Memorandum Decision of April 2009, vacated the Board's June 2006 determination, and, in so doing, remanded the appellant's case to the Board for further action consistent with the April 2009 Memorandum Decision.  In January 2010, the Board remanded the case for development directed by the Court's Memorandum Decision.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  The case is now, once more, before the Board for appellate review. 

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).
FINDINGS OF FACT

The service department has 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.


CONCLUSION OF LAW

The criteria for entitlement to VA death benefits have not been met.  38 U.S.C.A. §§ 101, 107, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to assist and notify

VA has a duty to notify and assist appellants 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).  These duties are not applicable to this appeal because the appellant has no legal entitlement to the benefit sought, as a matter of law.  Nelson v. Principi, 18 Vet. App. 407, 409-10 (2004); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant).

Nonetheless, as noted, the mandates of the Court's memorandum have been fulfilled, and the RO/AMC assisted the appellant in the development of her claim.  Pursuant to the Board's January 2010 remand, the RO/AMC by correspondence in February 2010, the appellant was provided with VCAA compliant notice, and the RO/AMC made multiple requests for service department verification of her spouse's service.  When it received additional documentation from the appellant, it submitted that evidence for service department verification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (holding that VA has a duty to request service department verification of all new and relevant evidence submitted by an appellant to show service).  There are no indications in the record of additional evidence that remains outstanding.

Applicable Law

The appellant claims that the military service of her spouse meets the requirements for eligibility for VA benefits on the basis that he was a "veteran."  At the outset, there is no dispute that the appellant is the decedent's surviving spouse.  No discussion in this regard is needed.

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 there from under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).

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); 38 C.F.R. §§ 3.40, 3.41.

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, the 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).

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).

The Court has held that the 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); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has reached the same conclusion.  See e.g. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (noting that "[b]ecause the United States Department of the Army refused to certify [the claimant's] alleged service in the Philippine Army, the VA properly refused to consider his claim for veterans' benefits based on that service.").

It appears that the appellant's husband filed a claim for VA disability benefits in October 1980, but that the claims file was destroyed in March 1996 (about 11 years after his death).  However, the RO later reconstructed a portion of the file. 

In response to a request for service verification, the Army had written in June 1981 that he had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Consequently, in August 1981, the RO had informed the appellant's husband that he was ineligible for VA benefits because the Army did not verify his service and VA had no authority to amend or change the decision. 

In support of her claim for VA death benefits, the appellant submitted the following documents relevant to her husband's service: a March 1946 honorable discharge certificate from the Philippine Army; a January 1946 Affidavit of Philippine Army Personnel authenticated by an officer of the Philippine Army; a February 1954 approval of a claim for education benefits from the Philippine Veteran's Affairs Office; certification from the Philippine Veteran's Affairs Office dated July 1979; a December 1981 statement from the appellant's deceased spouse asserting that he served with the United States Armed Forces, Far East (USAFFE) from September 1941 to March 1946, in the "I" Company 3rd Batallion 61st Infantry Regiment; certification from the local registrar dated March 1983; her spouse's death certificate dated April 1985; a January 1986 letter from the appellant to VA inquiring as to her application for burial benefits; an October 1989 certification of medical care from a battalion surgeon who treated her husband from 1944 to 1945 while serving together in an infantry unit; an August 1989 letter from Philippine Veteran's Affairs Office Pension and Gratuity Division; a February 2004 certification of service from the Office of the Adjutant General of the Armed Forces of the Philippines; a March 2004 joint affidavit from two soldiers who served in the same infantry unit with her husband from 1941 to 1946; and, numerous statements from the appellant purporting to verify the nature of her spouse's service.  None of the documents was issued or verified by the United States Army. 

In July 2005, the RO requested a follow-up search for service personnel and medical records from the National Personnel Records Center (NPRC) and received a negative reply in August 2005. 

The RO/AMC requested verification of service by the applicable United States service department using the appellant's husband's full name, place of birth, date of birth, service number, dates of service, and unit designations provided by the appellant in her supporting documents.  The RO noted that the appellant's husband was not listed in the Revised Reconstructed Guerilla Roster.  However, in May 2012, April 2013, and August 2013 the NPRC responded 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.  Consequently, the RO/AMC determined that the appellant's husband did not have the requisite service to establish eligibility for VA benefits and, thus, denied the claim.

The Board notes that the appellant's argument that the Immigration Act of 1990 allows consideration of Philippines-generated documentation to establish service in the Philippine Army for immigration and naturalization purposes.  Almero v. INS, 18 F.3d 757 (9th Cir. 1994).  She claims that if the Immigration Act allows veterans to rely on Philippine-generated documentation to establish their veteran's status, then certification by the United States service department should not be required for VA benefits. 

However, it is well-established law that a claimant seeking veteran's benefits based on service in the Philippine Commonwealth Army must prove service with documentation issued or verified by a United States service department.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  In Soria, the United States Court of Appeals for the Federal Circuit noted that the Immigration Act specifically provided that it shall not be construed as affecting the benefits of a person under any other law (other than the Immigration and Naturalization Act).  See also Fazon v. Brown, 9 Vet. App. 319 (1996) (distinguishing between veteran's status for purposed of naturalization and veteran's benefits); Duro v. Derwinski, 2 Vet. App. 530 (1992) (certification of veteran's status by Republic of Philippines Department of National Defense was insufficient). 

In sum, the NPRC has duly considered the appellant's application for VA benefits and certified on three separate occasions that her husband had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  See e.g., Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicants only recourse lies within the relevant service department, not the VA").

As the service department has certified that the appellant's spouse did not have the requisite service to qualify her for VA benefits, the appeal must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to VA death benefits is denied.


____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs