Citation Nr: 18155455 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-11 415 DATE: December 4, 2018 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for cause of death is denied. Nonservice-connected death pension is denied. FINDING OF FACT The requisite military service necessary to establish basic entitlement to DIC and/or death pension benefits has not been established; all reasonable development has been accomplished and further efforts to verify service would be futile. CONCLUSIONS OF LAW 1. As military service is unverified, there is no legal entitlement to DIC benefits. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 2. As military service is unverified, the criteria for death pension are not met. 38 C.F.R. §§ 3.3(a) and (b), 3.7, 3.40, 3.41. REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran’s alleged military service between 1943 and 1945 is unverified. He died in October 1974 at a Department of Veterans Affairs (VA) Hospital. The appellant claims benefits as his surviving spouse. As an initial matter, none of the veteran’s military personnel records or service treatment records are available. It may be that, if they existed, these records were destroyed in the 1973 National Personnel Records Center (NPRC) fire. When service records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c), (d). When VA attempts to obtain records from a Federal department or agency, the efforts to obtain those records must continue until they are obtained unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3). In this case, the appellant filed an application for DIC or Death Pension in October 2009. She indicated her late husband entered active service for the Army on May 17, 1943 and left service on January 1, 1945 from Fort Bragg, North Carolina. She indicated she did not know the place he enlisted and did not know his service number. She also indicated that she married the veteran 2 days prior to his enlistment on May [redacted], 1943. Along with her application, the appellant submitted a marriage license and an obituary indicating that at the time of his death, her purported husband was, in fact, the husband “of the late [R.B] who died in 1971.” His death certificate also indicates that he was a widower at the time of his death. A Personnel Information Exchange System (PIES) request was made to the National Personnel Records Center (NPRC) to verify service between May 17, 1943 and January 1, 1945. The response indicated a record could not be identified without a service number. In March 2010, the Regional Office (RO) sent the appellant a letter seeking evidence of military service and further information as to her marriage given the conflicting evidence in the submitted obituary. In July 2010, the appellant submitted a VA 21-686c Declaration of Status of Dependents indicating she had only been married once and her marriage had ended at the time of her husband’s death in 1974. She also indicated he had only been married once and they had no children. In a December 2010 statement in support of claim, the appellant indicated she was a minor, specifically 14 years old, at the time of her marriage and indicated knowing of no reason why she could not be married at that time. Thereafter, in a December 2010 notice letter, the RO asked the appellant whether she lived continuously with the veteran until his death and again sought evidence regarding his military service. In March 2011, in the absence of a response from the appellant, VA executed a Formal Finding on the Unavailability of Military Service. The Memorandum indicated VA was unable to determine service dates in the absence of a service number and that the appellant had not returned the National Archives (NA) Form 13075 Questionnaire about Military Service. In a March 2011 correspondence, the RO notified the appellant that her claims were denied. In April 2011, the appellant filed a notice of disagreement. She argued that since the veteran died in a VA hospital in 1974, record of his service should be available to VA. She indicated she did not have proof of military service. In November 2012, the RO sent another letter seeking the veteran’s military service number and alerting the appellant that the veteran’s records may have been destroyed in the 1973 fire at the NPRC. Again, the appellant was asked to submit the NA Form 13075 so VA could verify the veteran’s service dates and character of discharge. The RO also asked the appellant to return the NA Form 13055 for VA to request a thorough search be made for military medical records. The appellant was informed of other documents that could substitute for service treatment records. The RO also sought further information regarding the indication that the deceased veteran was married to someone not the appellant at his time of death. Treatment records related to his cause of death were sought along with any further statements the appellant wished to make in support of claim. In March 2013, the appellant submitted the NA 13075, NA 13055, a response from the NPRC sent in response to her records request and a statement in support of claim. On the NA 13075, she again indicated she did not know the veteran’s service number. She indicated his place of enlistment was at an induction center in Atlanta, Georgia and his basic training took place at Fort Benning and Fort Bragg. On the NA 13055, the appellant indicated the veteran had died of liver cancer at a VA hospital in New Jersey. The response from the NPRC indicated the veteran’s social security number did not result in the discovery of any records, that the records may have been destroyed in the 1973 fire and that the information submitted on the NA 13055 and NA 13075 was insufficient to conduct a search of alternate records sources. In her statement in support of claim, the appellant again stated she had no records of military service to submit. In a March 2015 statement of the case, the RO denied entitlement to DIC and/or death pension in the absence of information necessary to determine veteran status. In her March 2015 Form 9, the appellant argued that because he died in a VA hospital, he must have been a veteran. In addition, she noted that the death certificate indicated he served in the Armed Forces during World War II. A Deferred Rating dated in July 2016 indicated consultation of the M21-1 Training Manual and the section relevant to Alternative Sources for Evidence of Service. See M21-1, III, iii, 2, E.5.b. Pursuant to this, the RO made further requests to verify active service based on information provided by the appellant. Specifically, the RO sent requests for military records to the Adjutant Generals Offices in Georgia and North Carolina, a records request was sent to the Release of Information Office (ROI) at the East Orange VA Medical Center (VAMC) indicating the veteran’s date of death at that facility and seeking military service information. An inquiry was also made with the Social Security Administration. Phone calls were placed to the North Carolina National Guard and Georgia National Guard. An information request was sent to the Department of the Army seeking copies of service medical records and verification of all periods of service. An October 2016 Report of General Information indicated the Department of the Army had been called because they were the head of both the Reserve and the National Guard. It was suggested a Standard Form (SF) 180 be submitted. In October 2016, a response was received from the ROI at the East Orange VAMC that medical records from January 1, 1974 to October 28, 1974 could not be located and no service information was found for the veteran in their Archives. In November 2016, in response to a submitted SF 180, the Department of the Army responded that they were unable to locate a service record because records of soldiers who separated from the Army prior to October 2002 were maintained at the NPRC. In a November 2016 statement in support of claim, the appellant stated she was “absolutely positive” the veteran joined the Army between 1943 and 1945. She indicated he served at Fort Benning, Little Rock, Arkansas and then went overseas. She submitted another NA 13075 indicating the veteran’s place of enlistment as Fort McPherson and that basic training had been at Fort Bragg, which was also his separation station. In November 2016, the RO made another PIES request indicating the veteran had entered from Fort McPherson and was released from the infantry at Fort Bragg. In a response, it was again indicated a record could not be identified without the veteran’s service number. In January 2017, following another Deferred Rating to attempt requests from alternative sources, the RO sought information from two County Commissioners Offices where the veteran supposedly lived following discharge from service. The correspondence sought information as to the veteran’s service dates and indicated that often veterans would register their discharge documents with the County in which they would be residing for safekeeping. VA received negative replies to both inquires. In a March 2017 supplemental statement of the case, the RO continued denial of the claims due to a lack of verified service. Overall, the Board finds that as required by the duty to assist, VA made reasonable efforts to verify active service based on the evidence the appellant provided and that further requests to obtain proof of service would be futile. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Entitlement to DIC and death pension benefits requires that the deceased veteran had qualifying military service. Active, Reserve or National Guard service has not been verified in this case and, as such, the claims must be denied based upon a lack of entitlement under the law. The Board also notes that basic eligibility for DIC benefits and death pension benefits requires that the appellant be an eligible claimant. Here, that is not entirely clear as the evidence is conflicting regarding whether the appellant was the veteran’s spouse at the time of his death. To be recognized as the veteran’s surviving spouse for the purpose of establishing entitlement to VA death benefits, the appellant must be a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran’s death. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50(b)(1). In this case, the submitted obituary and death certificate suggest that the veteran was not survived by a wife and that he had three sons and a daughter. In contrast, the appellant’s Declaration of Status of Dependents indicates she had no children. In addition, the appellant indicated marriage in the state of Georgia at the age of 14. Georgia’s marriage age requirement laws do not appear to allow legal marriage of individuals younger than 16 years of age even with parental consent. Although the Board has not researched whether such marriage would have been legal in 1943 and the appellant claims she knew of no reason she could not marry, throughout the course of the appeal, the appellant failed to provide requested information regarding whether she lived with the veteran continuously prior to his death or any explanation as to the conflicting information indicating the veteran had been married to someone else prior to the time of his passing and he was not survived by a spouse. The Board acknowledges the appellant’s frustration regarding the inability to locate records given that death in a VA hospital indicates a likelihood that the veteran did have a period of service and his death certificate indicates that he had been in the Armed Forces. Unfortunately, dates of service and character of discharge remain unverified in this case and “no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). As basic entitlement to benefits under the law has not been demonstrated in the absence of verified military service, the benefit-of-the-doubt doctrine does not apply and the claims must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel