Citation Nr: 21003202 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-28 781 DATE: January 19, 2021 ORDER The claim of entitlement to VA death benefits is denied. FINDING OF FACT The U.S. Department of the Army, through the National Personnel Records Center (NPRC), was unable to verify that the Appellant’s husband had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces. CONCLUSION OF LAW The criteria for basic eligibility for VA death benefits are not met. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant’s husband served with the Philippine Army during World War II and received an honorable discharge. The Appellant’s husband passed away in August 2005. The instant matter is on appeal from an April 2015 decision. In October 2016, the Board found new and material evidence sufficient to reopen the claim of entitlement to VA death benefits and remanded the issue for an additional search of the National Personnel Records Center (NPRC) to include newly identified units of service. In February 2020, the Board again remanded this issue in order to afford the Appellant an opportunity to challenge her husband’s exclusion from the Department of the Army’s reconstructed roster. 1. The claim of entitlement to VA death benefits The Appellant asserts that her husband served as a recognized guerilla during World War II, and thus she is entitled to VA death benefits due to the nature of his service. The surviving spouse of a deceased veteran may be eligible for DIC benefits or other death benefits, including nonservice-connected death pension benefits and accrued benefits. 38 U.S.C. §§ 1310. In order to qualify for such benefits, “the party upon whose service the claimant predicates the claim... [must be] a ‘veteran.’” Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). A 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); 38 C.F.R. § 3.1 (d). Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces. See 38 U.S.C. §§ 101 (10), 101(21)(c), 101(24), 107; 38 C.F.R. § 3.40. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East (USAFFE) by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Service prior to July 1, 1946 in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the U.S. Armed Forces (including recognized guerrilla service) is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, such is not qualifying service for nonservice-connected pension (to include death pension) benefits. 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Following World War II, a reconstructed roster of recognized guerilla members and units was compiled. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. Id. at 749. Where service department certification is required, the service department’s decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203 (c). If a claimant has not had the opportunity to challenge inclusion in the Army’s reconstructed roster, however, the Federal Circuit has held that VA cannot “rely simply on the Army’s determination that the veteran’s name does not appear on the reconstructed roster without giving the veteran a meaningful opportunity to challenge his service record.” Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (Fed. Cir. 2019). Instead, the Federal Circuit determined that claimants should be afforded the opportunity to challenge their exclusion from the reconstructed roster prior to a final denial of VA benefits. See, e.g., Reyes v. Wilkie, 780 F. App’x 923, 924 (Fed. Cir. 2019). In the present case, the Appellant provided multiple documents pertaining to her husband’s military service. Relevant documentation includes a certificate noting an honorable discharge from the Philippine Army, a Certification from the Adjutant General of the Armed Forces of the Philippines documenting that the Appellant’s husband was a guerilla, as well as an Affidavit for Philippine Army Personnel that designated the Appellant’s husband as “USAFFE-GUERILLA”. In light of the above, however, the Board finds that such documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not an official document of the appropriate United States service department and are without the official seal. The document therefore is not acceptable, in of itself, as verification of the Appellant’s husband’s service for the purpose of receiving VA benefits. Soria, supra. When a claimant does not submit evidence that meets the requirements of 38 C.F.R. § 3.203(a), VA shall request verification from the service department. The Regional Office repeatedly sought certification from the NPRC, which has been charged to retrieve records related to Philippine service during World War II by the Department of the Army. In March 2015 and May 2016, the NPRC relayed that the Appellant’s husband was not listed on the reconstructed roster. Most recently, in January 2018, the NPRC confirmed that they located the Appellant’s husband’s file, but his name remained absent from the rosters. Pursuant to the Board’s previous remand, the Appellant was afforded the opportunity to challenge her husband’s exclusion from the reconstructed rosters with the Department of the Army. In August 2020, the Regional Office sent the Appellant the necessary documentation to file a claim with the Department of the Army and requested that, if she did attempt to challenge the record, she inform the Regional Office of this effort within 90 days. The Appellant did not respond within 90 days, nor was the mail returned as undeliverable. There is no indication from the record that she initiated an inquiry with the Department of the Army. Accordingly, the Board is bound by the certification of the Department of the Army and NPRC regarding the nature of the Appellant’s husband’s service. See Duro, 2 Vet. App. at 532 (reflecting that the service department’s determination is binding on VA for purposes of establishing service in the U.S. Armed Forces); see also January 2016 Memorandum of Agreement between the Department of the Army and the National Archives and Records Administration (NARA) (delegating the responsibility of verifying service to the NPRC/NARA). The Board is sympathetic to the Appellant’s argument that documents from the Philippine Army show “USAFEE” service and that such designation appears to indicate active or qualifying service in the U.S. Armed Forces. USAFEE was an abbreviation for the United States Armed Forces, Far East. However, this designation does not, in of itself, establish that an individual had qualifying active service with the United States Armed Forces. Instead, the reconstructed roster was repeatedly searched by NPRC, and the Appellant’s husband’s file was located, but his name was not on the list of recognized guerilla units. While the Appellant was afforded reasonable opportunity to challenge the roster, there is no evidence that she initiated that process or that the Department of the Army revised the roster to include her husband. 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 Appellant’s husband’s service does not meet the criteria described, the Appellant does not meet the basic eligibility requirements for VA death benefits, and the claim must be denied based upon a lack of entitlement under the law. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.