Citation Nr: 1756680	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  09-05 591	)	DATE
	)
	)

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


THE ISSUE

Whether the Appellant's deceased spouse had qualifying service (and was a Veteran) for the purpose of establishing basic legal entitlement to VA death benefits.


ATTORNEY FOR THE BOARD

Steven H. Johnston, Associate Counsel


INTRODUCTION

The Appellant claims that her deceased husband had recognized military service in the United States Armed Forces of the Far East (USAFFE) during World War II.  He died in July 1997.  The case is before the Board of Veterans' Appeals (Board) on appeal from April and July 2008 decisional letters of the Manila, Philippines Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in April 2014 and remanded for additional development.


FINDING OF FACT

The Appellant's deceased spouse did not have qualifying service and was not a veteran for the purpose of establishing basic entitlement to VA benefits.


CONCLUSION OF LAW

The record does not show that the Appellant's deceased spouse was a veteran of the United States Armed Forces.  38 U.S.C. §§ 101, 107, 501, 1521, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.7, 3.203, 3.312, 3.314, 3.6, 3.102, 3.159 (2017)


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159.  The Appellant received appropriate notice via letter in February 2008.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the claim, and therefore appellate review may proceed without prejudice to the Appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The instant case turns on the question of whether the Appellant's deceased spouse qualifies as a veteran as that term is defined in VA regulations.  The Board finds that all the relevant records that the VA has been able to locate or obtain from the Appellant or other relevant sources are in the record, including personnel records from the Armed Forces of the Commonwealth of the Philippines and responses from the National Archives and Records Administration (NARA) through its agency the National Personnel Records Center (NPRC).

It is noted that there is evidence in the record from VA's Beneficiary Identification Records Locator Subsystem (BIRLS) that indicates that the Appellant's husband may have previously made claims to the VA RO in Manila prior to his death.  However, it appears that any claims file generated as a result of these earlier claims was destroyed and the RO has made a formal finding that any resulting administrating decisions or records regarding these past claims cannot be located.  The Appellant was provided with appropriate notice of this development in August 2017.  See 38 C.F.R. § 3.159(e).  Consequently, this decision has been issued mindful of VA's heightened duty to assist and explain its decision in instances where records have been lost while in the possession of VA.  Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).

II.  Status as a Veteran

This claim arises from the January 2008 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits form filed by the Appellant in which she sought service connection for the cause of the Veteran's death.

These benefits are available only where a claimant is the surviving spouse of a veteran with qualifying service.  See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.312, 3.314.

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.  In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits. 38 C.F.R. § 3.7. 

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. § 101(2). 

The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101 (24). 

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. § 107; 38 C.F.R. § 3.40. 

Service of persons enlisted under section 14 of Public Law No. 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 No. 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, 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). 

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. See 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 the 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) (requiring service department documentation of service where available), § 3.203(c) (requiring service department verification of service where documentation is not available).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F. 3d at 749.  In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. 

Persons with service in the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East), 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.

Here, the Appellant has not submitted any records from the U.S. Armed Forces documenting that her spouse had service in served in the U.S. Armed Forces in the Philippines.  Instead, the Appellant has submitted records from the army of the Commonwealth of the Philippines.  These records document that the Appellant's spouse served in the army of the Philippines.  They also indicate that the Appellant's spouse was inducted into the USAFFE in November 1941.  However, these documents do not comply with 38 C.F.R. § 3.203(a) in that they were provided by the Philippine Army, and not the U.S. service department.  They also do not provide the needed information regarding the length, time, character of service, nor does it establish that Appellant's spouse was called into service under the orders of the General Officer of the U.S. Army as required by 38 C.F.R. § 3.40.

Consequently, to comply with 38 C.F.R. 3.203(c), VA has sought confirmation of the Appellant's spouse's creditable service from the relevant agencies and received information from the NPRC, an agency of the NARA, that determined that the Appellant's spouse's service could not be verified by the relevant department of the United States Armed Forces.  See also, copy of the Memorandum of Agreement between the United States Army and NARA stating that the NARA shall process requests regarding creditable service from U.S. Government agencies added to the claims file in August 2017.

Based on this evidence, the Board finds that the evidence of record does not establish that the Appellant's spouse had creditable service as a Veteran as that term is defined for VA purposes.  In reaching this conclusion, the Board has considered the benefit of the doubt, but this doctrine does not apply where the evidence weighs against a Veteran's claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The claims made by the Appellant are denied, as the Appellant's spouse was not a veteran of the United States Armed Forces for VA purposes.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs