Citation Nr: 1753595	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  14-06 341	)	DATE
	)
	)

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


THE ISSUE

Eligibility for Department of Veterans Affairs (VA) death benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel



INTRODUCTION

The decedent died in September 1992. The appellant is his widow.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 decision of the VA Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO found that the decedent did not have the required military service to be eligible for VA benefits, and therefore denied the appellant's eligibility for VA death benefits, including dependency and indemnity compensation (DIC), death pension, and accrued benefits.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The National Personnel Records Center and the United States Army certified that the appellant's late husband had no recorded service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.


CONCLUSION OF LAW

The appellant's late husband was not a United States veteran for purposes of eligibility for himself or his survivors for United States veterans' benefits, including DIC, death pension, and accrued benefits. 38 U.S.C. §§ 101(2), 101(24), 107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.203 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

The RO provided the appellant notice in letters issued in April, July, and September 2011. In those letters, the RO notified her what information was needed to substantiate claims for VA death benefits, including DIC, death pension, accrued benefits, what information was needed to verify the decedent's service, and what information was needed to show prisoner of war (POW) status. The letters also addressed how VA assigns effective dates.

The claims file contains a statement from the decedent, statements from the appellant, and information regarding the decedent's service history. The assembled information is sufficient to reach a decision on the appellant's claim.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The appellant actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so.


Eligibility for VA Death Benefits

In May 2011, the appellant submitted a claim for VA benefits as the surviving spouse of a veteran. She wrote that her late husband had military service from December 1941 to March 1946. She also reported that he was a POW.

The VA form for claiming survivor's benefits addresses claims for DIC, death pension, and accrued benefits. VA pays DIC to the surviving spouse of a veteran who dies, after December 31, 1956, from a service-connected or compensable disability. 38 U.S.C. § 1310 (2012). In a veteran who was a POW, under certain circumstances, service connection may be presumed for certain diseases. See 38 C.F.R. §§ 3.307, 3.309 (2017). VA pays pension to the surviving spouse of a veteran of a period of war. 38 U.S.C. § 1541 (2012). VA pays to the surviving spouse of a veteran accrued benefits to which the veteran was entitled at the time of his death under existing VA decisions, or that, based on the evidence on file at the veteran's death, were due to the veteran but were not paid. 38 U.S.C. § 5121 (2012). 

Records in the claims file document that the decedent died in 1992, and that the appellant is the decedent's surviving spouse. The threshold question as to whether the appellant is eligible for VA benefits is whether her late husband had service that created that eligibility by making him a United States veteran for purposes of United States veterans' benefits. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). Service 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 pension or burial benefits. 38 U.S.C. § 107; 38 C.F.R. § 3.40(a), (b), (c), and (d). For VA benefits purposes, active service will be the period certified by the service department. 38 C.F.R. § 3.41(a). When there is a question as to whether qualifying service is verified or adequately documented, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c).

The appellant submitted to VA a copy of an Affidavit for Philippine Army Personnel that the decedent completed in March 1946. In that affidavit, the decedent reported that in December 1941 he was called to active duty in A Company, 1st Battalion, 103rd Infantry, 101st Division. He stated that in January 1942 he was inducted into the United States Army Forces in the Far East (USAFFE). He related that in May 1942 he became a POW. He stated that in August 1945 he escaped from captivity, and soon after reported to military control. He stated that after escaping he engaged in farming. He related that in October 1945 he reported to the 62nd Infantry, and that he was then in a casual unit until he was finally processed in January 1946.

The appellant also submitted to VA a November 2010 certification from the Armed Forces of the Philippines. The certification was completed for purposes of benefits from the Philippine Veterans Affairs Office (PVAO). That document indicated that the decedent's military status was USAFFE, and that he was in A Company, 1st Battalion, 103rd Infantry, 101st Division, from December 1941 to January 1942. The document indicated that he was paid arrears pay or current pay for periods between December 1941 and March 1946.

The RO contacted the National Personnel Records Center (NPRC) in St. Louis, Missouri, and requested verification of the dates of the decedent's internment as a POW and verification of the dates and status of his reported service. In July 2011, the NPRC reported that there was no record of a claim of the decedent with the War Claims Commission (WCC), and that therefore the records indicated that the decedent did not acquire POW status. In January 2012, the NPRC reported that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.

In February 2013, the RO received a letter dated in January 2012. The letter, addressed to the son of the decedent, states that the decedent served as a member of the Philippines Commonwealth Army, including "Recognized Guerilla's" [sic], in the service of the Armed Forces of the "united [sic] States" from December 1941 to March 1946, and that the service "as [sic] considered as active service in the United States Army. The letter has the markings at the top of the page, but not those at the bottom of the page, of the NPRC letterhead used in other NPRC correspondence in the file. The letter uses a different font from other NPRC correspondence in the file.

The RO again sought from NPRC verification of the dates and status of the decedent's reported service. The RO noted that the decedent's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the RO. In December 2013, NPRC stated that the decedent's name was not listed on a roster, and that no change was warranted in the NPRC's prior negative certification.

The RO made additional requests for verification of the relevant information. In February 2014, NPRC again certified that the decedent's name was not listed on a roster, and that no change was warranted in the NPRC's prior negative certification. In October 2015, an official of the United States Department of Defense, Department of the Army wrote that the Army Human Resources Command reviewed information the RO provided and information in Army records maintained by the NPRC, and searched all rosters of the USAFFE and guerilla units that the decedent and the appellant identified. The Army official reported that the searches did not locate the decedent's name in any roster of those units, nor in any approved guerilla rosters. The official stated that the Army was unable to change to the previous negative service determination for the decedent.

The decedent reported his activities in 1941 through 1946 soon after those activities, in the 1946 affidavit. However, qualifying United States military or affiliated service by the decedent has not been adequately verified. Searches of United States service department records have not resulted in verification that the decedent had service that creates eligibility for United States veterans' benefits. While the letter received in February 2013 purports to be NPRC verification of the decedent's United States-affiliated service, anomalies in that document that distinguish it from other NPRC correspondence raise questions as to whether it was from NPRC. Multiple communications from NPRC, and a communication from the Army, indicating that the reported service could not be certified, have more persuasive weight than the letter received in February 2013.

United States service department records do not verify that the decedent had qualifying service with the United States Armed Forces or affiliated forces. Such findings are binding on VA. As it has not been verified that he had service that made him a United States veteran for purposes of United States veterans' benefits, the appellant, his surviving spouse, is not eligible for benefits for survivors of United States veterans.



	(CONTINUED ON NEXT PAGE)


ORDER

The appellant is not eligible for VA death benefits, including DIC, death pension, or accrued benefits.




____________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs