Citation Nr: 1801491 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-00 378A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to nonservice connected death pension benefits. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The appellant claims that her deceased husband had World War II service in some capacity with the U.S. Armed Forces in the Philippines. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 determination by the Veterans Affairs Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied the appellant's claim for nonservice connected death pension benefits. The appellant's husband died in June 2006. The appellant indicated on her December 2007 VA Form 9 that she wished to testify at a Board hearing. A hearing was scheduled for November 2017 and the appellant was provided notice of this hearing in October 2017 correspondence. However, the appellant failed to report to the scheduled hearing and failed to explain her absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United States Armed Forces; and the evidence submitted by the appellant does not show any such service. CONCLUSION OF LAW The appellant's husband did not have qualifying service that met the requirements for basic eligibility for VA death benefits. 38 U.S.C. §§ 101(2), 107, 5103, 5103A (2014); 38 C.F.R. §§ 3.1(d), 3.3(b)(3), 3.40, 3.41, 3.159, 3.203 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that her deceased husband had active World War II service with the U.S. Armed Forces in the Philippines. She is seeking VA death benefits as his surviving spouse. The claims file contains documentation of the appellant's marriage in February 1963, and of the death of her husband in June 2006. For purposes of eligibility for VA benefits, a veteran is a person who served in the active United States military, naval, or air service, and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerilla service, may constitute recognized service in the Armed Forces of the United States for the purposes of eligibility for certain VA benefits. 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. However, such service must be certified as qualifying by the appropriate military authority. 38 C.F.R. § 3.203. For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains the needed information as to length, time and character of service; and, (3) in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). In this case, the claims file contains documents relating to the World War II service of the appellant's husband: a September 1955 "Affidavit" signed by D.A.A. (a former fellow service member of the appellant's husband) showing that the appellant's husband served in the I Company, 3rd Battalion, and 14th Infantry USAFIP-NL from October 15, 1943 to February 6, 1945; a June 1991 "Application for Old Age Pension (Veteran)" noting World War II Guerrilla service with the Luzon campaign; and an August 1982 document from the Philippine Veterans Office showing that he was awarded a disability pension. The RO contacted the United States National Personnel Records Center (NPRC), requesting that that agency report whether the appellant's husband had service that constituted recognized service in the Armed Forces of the United States for the purposes of eligibility for VA benefits. In April 2007, the NPRC responded that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In a subsequent September 2016 statement, the NPRC again found that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. While the appellant has submitted several documents from the Philippines indicating military service, there is no U.S. service department record indicating that the appellant's husband had service recognized as U.S. service. For purposes of establishing eligibility for veterans' benefits under U.S. law, the evidence submitted in support of the appellant's claim is outweighed by the NPRC finding that the appellant's husband did not have certified U.S. service. VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). While recognition of service of the appellant's husband by the Philippine government is sufficient for entitlement to benefits from that government, it is not sufficient for benefits administered by VA. VA is bound to follow the certifications by the service departments with jurisdiction over U.S. military records. Here, the NPRC has certified that the appellant's husband did not have service in the recognized guerrillas or any other qualifying military organization. There is no additional competent or credible evidence to indicate otherwise. The Board therefore concludes that the circumstances of the World War II service of the appellant's husband do not meet the requirements for basic eligibility for VA death benefits for the appellant. 38 U.S.C. §§ 101(2), 107; 38 C.F.R. §§ 3.1(d), 3.3(b)(3), 3.40, 3.41, 3.203. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the decedent's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements VA benefits, and the claim must be denied based upon a lack of entitlement under the law. The Board has considered whether the notice provisions found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 are applicable to this claim. The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). ORDER The appellant's basic eligibility for VA death benefits is not demonstrated, and the appeal is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs