Citation Nr: 21002526 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-29 071A DATE: January 13, 2021 ORDER Entitlement to nonservice-connected death pension benefits is denied. FINDING OF FACT The Veteran’s only military service was in the Special Philippine Scouts from May 1946 to February 1949. This service does not constitute qualifying service to establish eligibility for nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 107, 1541; 38 C.F.R. §§ 3.3, 3.40. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Special Philippine Scouts from May 1946 to February 1949. He died in November 1995 and the Appellant is his surviving spouse. This matter was previously before the Board in December 2016 and May 2019 at which time it was remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to nonservice-connected death pension benefits is denied. The Appellant has asserted that the Veteran had qualifying military service such that she is eligible to receive nonservice-connected death pension benefits. The law authorizes the payment of a 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 VA shall pay a pension for a 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 United States Army Forces in the Far East, including service with the recognized guerrillas, the Commonwealth Army of the Philippines (Regular Philippine Army), or service with the “New” or “Special” Philippine Scouts under Public Law 190, 79th Congress, is recognized service for certain VA purposes. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. However, such persons 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 non-service-connected death pension benefits. See 38 U.S.C. § 107; 38 C.F.R. § 3.40; 59 Stat. 538 (Armed Forces Voluntary Recruitment Act of 1945, Public Law 190, 79th Congress). By contrast, service in a regular component of the United States Armed Forces, also referred to as the “Old Philippine Scouts” or the “Regular Philippine Scouts” would establish entitlement to nonservice connected pension benefits. 38 C.F.R. § 3.40(a). The Appellant submitted a claim for nonservice-connected death pension benefits in October 2012, identifying her husband as Porferio Leonor Narisma. The Agency of Original Jurisdiction (AOJ) submitted a Personnel Information Exchange System (PIES) request in September 2013, October 2013, December 2016, and May 2017 seeking verification of the Veteran’s service from the National Personnel Records Center (NPRC) and National Archives and Records Administration (NARA). The Veteran’s service personnel records and service treatment records were determined to be fire-related (meaning presumed to have been destroyed in a fire that occurred at a VA records storage facility) but a reconstructed record was obtained and added to the claims file. When a veteran’s records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare, supra. In part, such a heightened duty obligates VA to advise a Veteran to submit alternative forms of evidence in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Board’s analysis has been undertaken with this heightened duty in mind. The Court of Appeals for Veterans Claims (Court) determined in Tagupa v. McDonald, 27 Vet. App. 95 (2014), that verification of service must be provided directly from the service department. The Board notes that after the Tagupa decision, the Department of the Army and NARA signed a Memorandum of Agreement (MOA) in January 2016 that gave the responsibility of verifying military service to the NPRC. The MOA has been added to the claims file. As such, the Board finds that all required procedures have been followed to verify the Veteran’s service. The Board notes that the Appellant asserted in her July 2014 Substantive Appeal that the documents the AOJ relied on in concluding that the Veteran did not have qualifying service referred to Porferio L. Narisma, whereas the Veteran did not have a middle name. Subsequent PIES requests directed the NPRC and NARA searches to look only for Porferio Narisma and not Porferio L. Narisma. The Board notes that none of the documents in the reconstructed record contain a middle “L” initial. Further, the Appellant’s original claim for benefits identified her husband with the middle name Leonor. She included the Veteran’s date of birth in her claim which matches the date of birth in the reconstructed military personnel records. Based on the foregoing, the Board finds that the reconstructed record pertains to the Veteran and the duty to assist has been satisfied. 38 U.S.C. § 5103A(a)(2). Within the Veteran’s reconstructed record is a certification of military service for Porferio Narisma, reflecting service in the Philippine Scouts from May 13, 1946, to February 19, 1949, with an honorable discharge and a separation qualification record reflecting the same dates of service. As such, he served in the “New” or “Special” Philippine Scouts. 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). The available service personnel records do not show that the Veteran had service as an “Old Philippine Scout” or a “Regular Philippine Scout” before October 6, 1945. Therefore, 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 military service for the purpose of receiving VA nonservice-connected pension benefits. Thus, the Appellant is not eligible for entitlement to VA death pension benefits, and the claim must be denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate 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.