Citation Nr: 21063823 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-13 612 DATE: October 18, 2021 ORDER The claim of entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits is denied. The claim of entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The appellant's father had no service in the Armed Forces of the United States. 2. The appellant's father had no pending claims at the time of his death, and the record does not indicate that the appellant was owed any money at the time of his death. CONCLUSIONS OF LAW 1. The criteria for basic eligibility for VA death benefits have not been met. 38 U.S.C. §§ 101(2), 5106; 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203. 2. The criteria for a grant of accrued benefits have not been met. 38 U.S.C. §§ 5107, 5121; 38 C.F.R. §§ 3.102, 3.816, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes before the Board from two separate claims. First, the appellant's mother filed a claim in September 2005 seeking entitlement to VA death benefits based upon the asserted service of the appellant's father. That claim has a long appellate history, including a July 2007 hearing before the undersigned Veterans Law Judge. While that appeal was pending before the Court of Appeals for Veterans Claims, the appellant's mother passed away. The appellant filed a motion to substitute before the Court. In a September 2013 order, the Court denied the motion to substitute, set aside the Board's June 2010 decision, and dismissed the appeal. The appellant filed a claim for accrued benefits at the Regional Office (RO) in July 2013. That claim was denied in a July 2013 administrative decision and appealed by the appellant in a March 2014. The Board remanded these issues in August 2018 in order to obtain a substitution determination from the RO. In October 2018, the RO granted substitution to the appellant, the surviving child of his late mother and the Filipino service member. The Board notes that the appellant is not a child, as defined by VA. Thus, the substitution is limited to the appellant's status as the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121A; 38 C.F.R. §§ 3.1000, 3.1010. In May 2021, the Board remanded the appeal to the RO for further development. 1. Entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits. The substitute appellant contends that he is entitled to VA death benefits because his father was a veteran who served during World War II. The Board concludes that criteria for basic eligibility for VA death benefits have not been met. 38 U.S.C. §§ 101(2), 5106; 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203. The relevant law provides that eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. In addition, laws and regulations provide that certain individuals and groups are considered to have performed active military, naval, or air service for purposes of VA benefits. 38 C.F.R. § 3.7. 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). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(24). 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 of persons enlisted under section 14 of Public Law No. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law No. 190, as it constituted the sole authority for those enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). 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, United States 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)-(d). Title 38 of the United States Code authorizes the Secretary of VA to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. 38 U.S.C. § 501(a)(1). Under that authority, the Secretary has promulgated 38 C.F.R. § 3.203(a) and 38 C.F.R. § 3.203 (c), to govern the conditions under which VA may extend veterans' benefits based on service in the Philippine Commonwealth Army. Those regulations require that service in the Philippine Commonwealth Army (and thus veterans' status) be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department. 38 C.F.R. § 3.203(a) (requiring service department documentation of service where available), § 3.203(c) (requiring service department verification of service where documentation is not available). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. 38 C.F.R. § 3.203; Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). . In this case, the appellant's mother filed for DIC and death benefits in which she alleged that the appellant's father had served as a member of the recognized guerrillas from September 12, 1943, to September 30, 1945. As proof of qualifying service, the appellant's mother submitted an affidavit, prepared by his father, in support of the claim. The affidavit states that the appellant's father served with the Narban Reserve Battalion, 121st Infantry Brigade. In October 2009, the National Personnel Records Center (NPRC) reported that the appellant's father had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. At that time, the record contained no documents regarding the contended service. In January 2010, the NPRC conducted another search. In January 2010, the NPRC reported that the appellant's deceased father did not have service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. In February 2021, the AOJ again attempted to verify F.J.'s service. In February 2021, the NPRC, through its delegated authority from the Department of the Army, reported that there was no change to the previous negative certification. The Board notes that recently, the Federal Circuit has ruled that a claimant should have an opportunity to challenge the Department of the Army's reconstructed roster prior to final adjudication on the merits. In July 2019, the Federal Circuit 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 (Fed. Cir. 2019). The Federal Circuit noted that VA and the Department of the Army represented that they would consider an application filed by purported Filipino Guerillas claiming military service during World War II, including those not currently listed on the reconstructed roster. Such a concession was due to repeated admissions of inaccuracies in the reconstructed roster, including a 1949 Army report noting that many of the original rosters for Filipino units were lost, destroyed, or tampered with prior to the closing of the record. Additionally, officials testifying in Congressional hearings related to the FVEC Fund admitted that eligible individuals may have been excluded from the reconstructed roster. As a result, the Federal Circuit determined that claimants should be allowed the opportunity to challenge exclusion from the reconstructed roster prior to a final denial of VA benefits. Reyes v. Wilkie,780 F. App'x 923 (Fed. Cir. 2019). VA must request service verification directly from the service department, as opposed to the NPRC. 38 C.F.R. § 3.203(c); Tagupa v. McDonald, 27 Vet. App. 95 (2014), The Court took judicial notice of a 1998 memorandum of agreement (MOA) between the Department of the Army and the National Archives and Records Administration (NARA) that assigned the responsibility of providing reference service on the collection of Philippine Army documents. However, the Court determined that the language of the 1998 MOA was ambiguous, and that ambiguity precluded the Court from finding that the Department of the Army had delegated to NARA its duty to make administrative determinations verifying personnel status and military service. Nevertheless, in January 2016, the Department of the Army and NARA signed a new MOA that clearly and unambiguously delegates responsibility of verifying military service to the NPRC and effectively supersedes the 1998 MOA. A copy of the January 2016 MOA is associated with the claims file. In May 2021, the Board remanded the current appeal to allow the appellant a meaningful opportunity to challenge the service department's determination that F.J. had no service as a member of the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. Dela Cruz v. Wilkie, 931 F.3d 1143 (2019); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In a May 2021 VA letter, the appellant was advised that VA is not able to approve the claim for VA benefits without verification of F.J.'s service through the Department of the Army. 38 C.F.R. § 3.203. The May 2021 VA letter advised the appellant to submit an application to the Army Board for Correction of Military Records (ABCMR) requesting a correction of F.J.'s military record, and the appellant was provided the necessary form and contact information to submit an application to ABCMR. The appellant was advised to notify the AOJ within 90 days whether he had filed an application with the ABCMR, or to request an extension of the 90 days to file an application with ABCMR. To date, the appellant has not responded to notify VA that he has filed an application with ABCMR to correct F.J.'s service record, nor has he requested an extension of time in order to file an ABCMR application. The duty to assist is not always a one-way street. If a claimant wants help, the claimant cannot passively wait for it in those circumstances where the claimant may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The AOJ waited the full time allotted for the appellant to respond before issuing a supplemental statement of the case denying the claim for entitlement to VA benefits on the grounds that F.J. did not have qualifying service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces in an August 2021 supplemental statement of the case. The Board finds that VA has given the appellant a meaningful opportunity to challenge the Army's refusal to verify F.J.'s service through the ABCMR. The appellant has not provided any indication that he has filed, or intends to file, a petition with the ABCMR. Therefore, the Board is bound by the service department's finding that F.J. did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. The Board adds that the appellant is free to file a claim with VA in the future should the Department of the Army verify F.J.'s service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. Based upon the foregoing, it is not established that the appellant's deceased father had recognized guerrilla and/or Philippine Commonwealth Army (USAFFE) service. Although the appellant contends that his deceased father had the requisite service and the appellant's mother submitted affidavits of service completed by her husband, the United States service department has determined that the appellant's deceased father had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Where the service department records do not 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). The Board is sympathetic to the appellant's arguments, however, the Board is bound by the law and is without authority to grant the appellant's claim on an equitable basis. 38 U.S.C. § 7104. Accordingly, the appellant's claim for entitlement to VA benefits, to include DIC, is denied. 2. Entitlement to accrued benefits. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Periodic monetary benefits under laws administered by VA to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of a beneficiary, be paid to the living person first listed below: (A) the veteran's spouse; (B) the veteran's children (in equal shares); (C) the veteran's dependent parents (in equal shares). 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial. 38 U.S.C. § 5121(a)(6). In the instant matter, the appellant has been properly substituted for F.J.'s surviving spouse, and is therefore entitled to claim any benefits which had accrued at the time of the F.J.'s death. Nonetheless, the Board must deny the claim as there were no benefits accrued at the time of F.J.'s death to be paid. The record shows that the appellant's father died in February 1999. At the time of death, the father did not have any pending claims with VA for compensation or any other benefit. The Board has carefully reviewed the record but finds there are no grounds upon which it could grant accrued benefits to the appellant. The primary criteria for a grant of accrued benefits is a benefit owed to the deceased at the time of death. Absent a pending claim at the time of the death of the appellant's father which might lead to benefits owed the father, there are no accrued benefits to grant. The Board has carefully reviewed the available evidence, but found no other proof that the appellant's father was owed any benefits at the time of death which may be paid as accrued. Therefore, the Board must regrettably deny the claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.