Citation Nr: 1338674	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-30 296	)	DATE
	)
	)

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


THE ISSUE

Entitlement to Department of Veterans Affairs (VA) nonservice-connected death pension benefits.


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The record reflects the Veteran served as a guerrilla during World War II.  He died in April 2009, and the Appellant is his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the VA Regional Office (RO) in Manila, the Commonwealth of the Philippines, which in pertinent part, denied the current appellate claim.

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).

As an additional matter, the Board notes that the Appellant has contended, in part, that she is entitled to VA benefits based upon the Veteran's service under the "Equity Bill."  See July 2010 Substantive Appeal.  It appears this may be a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund based upon the Veteran's service.  However, this was not an issue addressed by the August 2009 RO decision, nor does it appear this claim has otherwise been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

The National Personnel Records Center (NPRC) has certified that the Veteran's military service in World War II was that of a guerilla.


CONCLUSION OF LAW

The service requirements for eligibility for VA nonservice-connected death pension benefits are not met.  38 U.S.C.A. §§ 101(2), 101(24), 107, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.203 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that as a general rule VA, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In this case, however, for the reasons detailed below the Board finds that this appeal must be denied as a matter of law.  In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts.  Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  Therefore, no further discussion of the VCAA is warranted in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

Death pension is a benefit payable to a veteran's surviving spouse because of the Veteran's nonservice-connected death.  Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24.  See 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4).

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).  The term "active military, naval, and air service" includes active duty.  38 U.S.C.A. § 101(24)(A).  The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training.  38 C.F.R. § 101(21)(A).  The term "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1(a).

Service in the Philippine Scouts in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service as a veteran of the Armed Forces of the United States for the purpose of establishing eligibility for VA dependency and indemnity compensation, including the cause of death, and for accrued benefits, but not for pension.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40.

Service of persons enlisted under § 14 of Public Law 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits.  All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law 190, as it constituted the sole authority for such enlistments during that period.  This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190.  38 C.F.R. § 3.40(b) .

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, United States 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), (d).

Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits.  38 U.S.C.A. § 501(a)(1).  Under that authority, the Secretary has promulgated 38 C.F.R. §§ 3.203(a) and (c), to govern the conditions under which VA may extend veterans' benefits based on service in the Philippine Commonwealth Army.  Those regulations require that service in the Philippine Commonwealth Army (and thus veterans' status) be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department.  See 38 C.F.R. § 3.203(a), (c).

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 VA non-service-connected death pension benefits.  38 U.S.C.A. 
§ 107, 38 C.F.R. § 3.40.

In this case, the NPRC has certified that the Veteran's military service in World War II was that of a guerilla.  As already stated, under the law such service does not constitute active service for the purposes of establishing VA death pension benefits.  Stated another way, the law precludes VA death pension benefits based upon the nature of the Veteran's recognized military service during World War II.

Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  

The Board acknowledges that the Appellant has submitted various documents from the Government of the Philippines documenting military service to include a July 2008 Certification from the Armed Forces of the Philippines Office of the Adjutant General and a March 2009 statement from the Philippine Veterans Affairs Office.  The Board has carefully considered the documentation submitted by the Appellant, but notes that 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 United States service department, nor do they contain the necessary information to establish entitlement to the benefit sought.  Therefore, those documents may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA.  The Board is bound by the United States service department's certification.  Capellan v. Peake, 539 F.3d 1373 Fed. Cir. 2008) (If the service department does not verify the claimed service, the only recourse lies with the service department, not VA).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.  In any event, the documents from the Philippine Government also identify the Veteran as having been a guerilla during World War II.  Simply put, even if the Board were to accept these records as proof of the nature of the Veteran's military service, it would not result in a change in the disposition of this case.

For these reasons, the Board must find that the Appellant has no legal entitlement to VA death pension benefits.  Therefore, her appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law).


ORDER

Entitlement to VA death pension benefits is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs