Citation Nr: 1808152	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  16-01 843	)	DATE
	)
	)

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


THE ISSUE

Eligibility for nonservice-connected death pension benefits.


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel








INTRODUCTION

The Veteran served as a Philippine Scout in the Regular Army from August 1946 to March 1949.  The Veteran died in August 2005.  The Appellant is claiming as the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In November 2017, the Appellant withdrew her request for a Board hearing. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran died in August 2005.

2.  The service department records show that the Veteran served as a Philippine Scout from August 1946 to March 1949.


CONCLUSION OF LAW

The legal criteria for basic eligibility for VA nonservice-connected death pension benefits have not been met.  38 U.S.C. § 1521 (2012); 38 C.F.R. §§ 3.1, 3.2, 3.3 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

The facts are not in dispute and thus, the claim is barred as a matter of law.  The VCAA is inapplicable to the instant claim.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) ; 38 C.F.R. § 3.159(d)(3).

The law authorizes the payment of nonservice-connected disability pension to a veteran of wartime service who has the requisite service and who is permanently and totally disabled.  38 U.S.C. §§ 1502, 1521.

In addition, the Secretary of Veterans Affairs shall pay pension for nonservice-connected death to the surviving spouse of each Veteran of a period of war who met the service requirements prescribed in 38 U.S.C. § 1521(j), or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability.  38 U.S.C. § 1541.

In order to establish basic eligibility for VA pension benefits, it is required, in part, that the individual in respect to whom pension is claimed be a veteran who had active military, naval, or air service.  See 38 U.S.C. §§ 101(2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6.

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). 'Active military, naval, and air service' includes active duty. 'Active duty' is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The 'Armed Forces' consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1.

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 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).

Persons with service in the Philippine Commonwealth Army, U.S. Armed Forces, Far East (USAFFE), 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 nonservice-connected disability pension. See 38 U.S.C. § 107; see also Cacalda v. Brown, 9 Vet. App. 261, 264 (1996).

In the present case, the Veteran has been determined by the appropriate service department to have served as a Philippine Scout in the Regular Army from August 1946 to March 1949 with no other documented service.  

The service department's determination is binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

There is no legal basis on which the Appellant's claim can be granted.  The Veteran's recognized service falls into a service category which expressly has been deemed not to be active service for the purpose of receiving VA nonservice-connected pension benefits.  

Thus, the Appellant is not entitled to VA death pension benefits because such an award must be predicated upon the Veteran's eligibility, which is lacking.  

As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


	(CONTINUED ON NEXT PAGE)







ORDER

The claim for nonservice-connected death pension must be denied by law. 



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs