Citation Nr: 20007043 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-52 390 DATE: January 28, 2020 ORDER Entitlement to Department of Veterans Affairs (VA) burial benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The individual upon whose service this claim is based (Mr. VS) was not receiving any VA compensation or pension benefits at the time of his death in January 2012, nor was there any original or reopened claim for such benefits pending at the time of his death. He did not die while admitted to a VA facility, nor while admitted or traveling to a non-VA facility at VA expense for examination, treatment, or care. 2. The surviving spouse of Mr. VS was not receiving any VA compensation or pension benefits at the time of her death in August 2014, nor was there any original or reopened claim for such benefits pending at the time of her death. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to VA burial benefits are not met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1700-3.1713 (2018). 2. The criteria to establish entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The individual upon whose service this claim for VA benefits is based (referred to hereafter as VS) has asserted that he served in the Philippines in the 103rd Guerrilla Squadron attached to the United States Army Forces in the Far East (USAFFE) from early 1943 to early 1945. See, e.g., Affidavits, August 1956. However, the evidence contains no official service record or service department certification of this individual’s service as a Regular Philippine Scout, in the Commonwealth Army of the Philippines, or as a recognized guerilla in the service of the United States Armed Forces at any time. The Board acknowledges that prior notice letters from VA have identified this individual as having served in the Philippine Commonwealth Army from January 1943 to December 1945. See, e.g., Letter to surviving spouse, October 2012. However, based on VA regulations covering entitlement to VA benefits for Philippine and insular forces, even if such service were proven, service in the Philippine Commonwealth Army does not establish eligibility for VA pension benefits, to include the accrued death pension benefits sought here. 38 C.F.R. § 3.40(c). Philippine Commonwealth Army service may be used, however, to establish eligibility for burial allowance. Id. The Board also acknowledges that a claim of entitlement to accrued benefits filed by the surviving spouse was previously denied in October 2012, and a claim seeking burial benefits filed by the surviving spouse was previously denied in January 2014, approximately eight months prior to her death. Neither of these decisions was appealed. However, after the death of the surviving spouse, the present appellant, daughter of VS and the surviving spouse, filed the current appeal again seeking burial benefits as well as accrued benefits. The claim of accrued benefits now focused on death pension benefits the appellant believes were due to her mother at the time of her death, and does not address any benefits originally due to the father. See, e.g., VA Form 9, October 2016. Based on the complexities involved in this specific case, the Board moves directly to address the merits of the issues on appeal. The appellant appeared before the undersigned Veterans Law Judge in a videoconference hearing in November 2019 to present testimony on the issues on appeal. 1. Entitlement to VA burial benefits is denied. The appellant asserts her entitlement to VA burial benefits to help recoup expenses incurred for interment of the Veteran’s bodily remains and related funeral home services. Claims for a burial allowance, including a plot or interment allowance, may be advanced generally by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses” only. 38 C.F.R. § 3.1702(b)(3), (c)(1)(ii). Here, the appellant has indicated she incurred the expenses for interment of the deceased Philippine serviceman and has submitted a receipt for the same. Cemetery interment order, January 2012. Although the name of the daughter responsible for payment of the funeral expenses is only partially legible, it appears consistent with that of the appellant. The appellant does not assert that the cause of her father’s death was related to his military service, nor is such a contention raised by the evidence of record. Also, at the time of death, service connection was not in effect for any disability for VS. Thus, entitlement to burial benefits based upon a nonservice-connected death is addressed below. Where a veteran’s death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of burial may be payable, but only under certain circumstances. 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1705. Specifically, where the cause of death is not service-connected, entitlement to a burial allowance is based upon the following conditions: (1) at the time of death, a veteran was in receipt of compensation or pension (or but for the receipt of military retirement pay would have been in receipt of compensation); or, (2) a veteran had an original claim for compensation or pension pending at the time of his death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient evidence of record on the date of death to show entitlement; or (3), there is no next of kin or other person claiming the remains of a deceased veteran and the funds of that veteran’s estate are insufficient to cover burial expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c). In addition, the governing regulations provide that a burial allowance may be paid if a veteran died from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. § 3.1706(b), (d). An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the deceased. 38 U.S.C. § 2304; 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). In this case, the appellant’s claim for burial benefits was not filed within two years of the burial of the deceased. He died in January 2012, and the appellant first filed her claim seeking burial benefits in August 2015. Hence, for purposes of nonservice-connected burial benefits, this appellant’s application was not timely filed. Additionally, the remaining criteria for the award of nonservice-connected burial benefits have not been met. Initially, to qualify for VA burial benefits, status as a veteran for benefits purposes must be achieved. Philippine guerrilla service may be eligible for VA compensation, dependency and indemnity compensation, and burial allowance, but again, only in certain limited circumstances. 38 C.F.R. § 3.40(c), (d). These circumstances include when an individual is called into service of the Armed Forces of the United States and serving under a commissioned officer of the United States Army, Navy or Marine Corps, or under a commissioned officer of the Commonwealth Army recognized by and cooperating with the United States Forces. However, guerrilla service must be established by certification from the service department. 38 C.F.R. § 3.40(d)(2); see also Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Of note, unrecognized guerrilla service under a recognized commissioned officer may only be accepted as certified by the service department where the person serving in a guerrilla capacity was a former member of the United States Armed Forces (including the Philippine scouts) or the Commonwealth Army. This allowance explicitly excludes civilians within the text of the regulation. 38 C.F.R. § 3.40(d)(2)(ii). It also specifies that a certification of Anti-Japanese Activity will not be accepted as establishing guerrilla service. Id. In this case, the record does not contain any official Philippine service record, nor a United States service department certification that VS served in any recognized or unrecognized guerilla capacity in the service of the United States Armed Forces. The appellant asserts that a Presidential Memorial Certificate signed by President Barack Obama that states, “This certificate is awarded by a grateful nation in recognition of devoted and selfless consecration to the service of our country in the Armed Forces of the United States” should be accepted as verification of his service in the Philippines. The Board does not find this to be persuasive. Specifically, the appellant requested the Presidential Memorial Certificate, a document intended for honorary purposes rather than official service verification, by application using VA Form 40-0247 in August 2015. The request form indicates that this action is handled by VA’s National Cemetery Administration and is not administered by the Department of the Army, the Department of Defense, the Office of the President, the National Personnel Record Center, or any other agency or administration to whom the service department had delegated authority to determine qualifying service. Also, this document does not contain needed information such as the length, time and character of service. Thus, this document does not confer official service department verification of service. 38 C.F.R. § 3.203(a); see also Tagupa v. McDonald, 27 Vet. App. 95 (2014). To be clear, even if VS were in service to the United States between January 1943 to December 1945, which has not been shown, he still would not be eligible for VA burial benefits because the remaining criteria to establish entitlement to this burial benefit have not been met. At the time of his death in January 2012, VS is not shown by the record to have been granted service connection for any disability. He was not receiving any VA compensation or pension benefits and did not have any claims for VA benefits pending at the time of his death. Additionally, there is no evidence that he was discharged or released from any period of active service for a disability incurred or aggravated in the line of duty. His body was not unclaimed. Further, it is uncontroverted that VS died in a private hospital and was not admitted to a VA facility or hospital, nursing home, or domiciliary care, nor while admitted or traveling to a non-VA facility at VA expense for examination, treatment, or care at the time of his death. The legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and the Board is bound by the laws and regulations enacted for the administration of VA programs. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). As, on the facts of this case, even if status as a Veteran were to be achieved, there is still no legal basis to award burial benefits. In all, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to accrued benefits is denied. Similarly, the record presents no evidence of the appellant’s entitlement to accrued benefits on any grounds. Accrued benefits are defined as “periodic monetary benefits... authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid....” 38 U.S.C. § 5121(a) (2012); 38 C.F.R. § 3.1000(a) (2018). The United States Court of Appeals for the Federal Circuit has made it clear that, in order to support a claim for accrued benefits, a veteran or other valid claimant must have had a claim pending at the time of his or her death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101 (a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In this case, there is no evidence of any claim for compensation or pension that was filed during VS’s lifetime. Moreover, there is no evidence of any award of benefits ever established for the appellant’s mother, VS’s surviving spouse. The Board acknowledges the appellant’s statement that her mother received a pension of $3,109.16. VA Form 9, October 2016. However, there is no evidence that any award or entitlement to a VA pension was ever granted to the appellant’s mother on any basis. The appellant’s mother, RS, filed a claim for death benefits after the death of VS. However, this claim was adjudicated prior to her death and denied in October 2012 on the basis that VS did not have qualifying service. That decision was not appealed. Moreover, the record does not indicate, nor is it alleged, that VS had any other claims pending for benefits at the time of his death, and he was not entitled to any VA benefits under an existing rating or decision at the time of his death. In this regard, a claim for VA benefits pending on the date of death means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5); Jones, 136 F.3d at 1300. A consequence of the derivative nature of a surviving claimant’s claim for entitlement to a veteran’s accrued benefits is that, without a claim pending at the time of a veteran’s death, a surviving claimant has no claim upon which to base his or her own application for accrued benefits. See Jones, 136 F.3d at 1300. In this case, there were no pending unadjudicated claims filed by VS prior to his death, and he was not entitled to VA benefits under any existing rating decision prior to his death. Thus, RS, his surviving spouse had no basis to establish her own claim for accrued benefits. Also, there were no pending unadjudicated compensation or pension claims filed by RS prior to her death, and she was not entitled to VA benefits under any existing rating decision prior to her death. The decision denying accrued, DIC, and death pension benefits to RS based on her husband’s lack of qualifying service for these benefits was issued in October 2012. RS did not file a notice of disagreement within one year of this decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d) (2004). An administrative decision denying VA burial benefits to RS was then issued in January 2014. RS died in August 2014 and did not appeal the January 2014 decision by filing a notice of disagreement during her lifetime. The appellant did not expressly document her disagreement with the January 2014 decision either, instead filing a new claim seeking burial benefits. Nonetheless, as discussed above, regardless of the procedural posture of this claim, there is no entitlement to burial benefits shown. Furthermore, because there was no claim for VA compensation, pension or accrued benefits filed with VA that had not been finally adjudicated by VA on or before the date of either the death of VS or RS, there can be no valid claim for accrued benefits from this appellant. 38 C.F.R. § 3.1000(d)(5). In other words, the appellant has no claim upon which to base her own application for accrued benefits, and there is no legal basis for the payment of accrued benefits. The law is dispositive of the issue, and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.