Citation Nr: 1551821	
Decision Date: 12/10/15    Archive Date: 12/16/15

DOCKET NO.  14-31 822	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to dependency and indemnity compensation (DIC).

2.  Entitlement to nonservice-connected death pension.


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel



INTRODUCTION

The Veteran, who died in late 2010, served in the Recognized Guerillas and the Regular Philippine Army from October 1944 to May 1946.  The appellant is the Veteran's surviving spouse.  

This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO in February 2013.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).  

The issue of entitlement to DIC is addressed in the REMAND portion of the decision below.  


FINDING OF FACT

The Veteran's sole recognized active service was with the Recognized Guerillas and the Regular Philippine Army from October 1944 to May 1946.


CONCLUSION OF LAW

The Veteran's active service does not meet the criteria for VA death pension benefits. 38 U.S.C.A. §§ 107, 1541 (West 2014); 38 C.F.R. §§ 3.3, 3.40 (2015). 



REASONS AND BASES FOR FINDING AND CONCLUSION

The VA's Duty to Notify and Assist

Generally, prior to consideration of an appeal, the Board must determine whether VA has met its statutory duty to notify the appellant of the information and evidence necessary to substantiate her claim and whether the VA has assisted the appellant in procuring the evidence she reasonably identifies to the VA.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, in cases, such as this one, where resolution of the claim of entitlement to death pension is based on statutory interpretation, rather than consideration of the facts in evidence, the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  There is no possibility that any additional notice or development would aid the appellant in substantiating her claim of entitlement to death pension; and, therefore, any deficiency of notice or of the duty to assist constitutes merely harmless error.  

Analysis

When a veteran dies as a result of a nonservice-connected disability, the VA shall pay his surviving spouse a death pension, provided that the Veteran had the requisite wartime service and that the surviving spouse's net worth and annual income do not exceed the annual rate of pension.  38 U.S.C.A. § 1541; 38 C.F.R. §3.3(b)(4).  Both the wartime service and income and net worth criteria must be met for the appellant to prevail.  

The Veteran served with the Recognized Guerillas and the Regular Philippine Army from October 1944 to May 1946.  Although such service was clearly performed during World War II, the applicable law and regulations do not permit an award of death pension to the Veteran's surviving spouse for such service.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40 (c)-(d).  While the appellant could be entitled to DIC or burial benefits, there is no legal basis that would allow the appellant to receive a death pension.  The law is dispositive of the issue; and, therefore, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

In arriving at this decision, the Board does not need to reach a determination with respect to the second criteria concerning the appellant's net worth and annual income.


ORDER

VA death pension benefits are denied.


REMAND

The issue of entitlement to DIC is REMANDED to the AOJ for the following actions:

1.  The AOJ must ascertain the appellant's correct address and send her information concerning her options for representation before the Board.  

2.  The AOJ must request a copy of the report of the Veteran's final hospitalization from the St. Paul Hospital, as well as copies of all records associated with that hospitalization.  Such records should include, but are not limited to, the hospital discharge summary, emergency room records, ambulance records, consultation reports, reports of radiographic studies, reports of laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records.  
A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder.  

If the requested records are unavailable, the AOJ notify the appellant in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2014); 38 C.F.R. § 3.159(e) (2015).

3.  When the actions in parts 1 and 2 have been completed, the AOJ must undertake any other indicated development.  This could include an additional review of the Veteran's records by a VA examiner, if the AOJ deems such development necessary for rating purposes.  Following any additional development, the AOJ must readjudicate the issue of entitlement to DIC.  

If the benefit sought on appeal is not granted to the appellant's satisfaction, she must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond.  Thereafter, if in order, the case should be returned to the Board for further appellate action. 

By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. 

The appellant need take no action, unless she is notified to do so.  However, she is advised that she has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

PLEASE NOTE, THIS APPEAL  HAS BEEN ADVANCED ON THE BOARD'S DOCKET pursuant to 38 C.F.R. § 20.900(c).  As with all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action, it must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).



Department of Veterans Affairs