Citation Nr: 21065054 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 16-39 965 DATE: October 23, 2021 ORDER The claim of entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits is denied. FINDINGS OF FACT 1. The appellant's husband had no service in the Armed Forces of the United States. 2. The Board may not award benefits on the basis of equitable relief. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant's spouse contended that he was a recognized veteran by virtue of his service during World War II, which included a period of being a prisoner of war. The Appellant's spouse passed away in February 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, wherein the RO determined that the appellant did not have legal entitlement to VA death benefits, on the basis that her deceased husband had no recognized military service under VA law. Historically, in a December 2017 decision, the Board denied the appellant's application for VA death benefits on the grounds that new and material evidence was not received to reopen the issue as to whether the appellant's spouse had established "veteran" status for the purpose of meeting basic eligibility requirements for VA death benefits. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court or CAVC). In a January 2019 Joint Motion for Remand (JMR), the Court vacated and remanded the December 2017 Board decision. The parties noted that it appeared additional information had been received since a final March 1995 decision that had not been utilized in an attempt to verify the appellant's spouse's claimed service. In a July 2019 Board decision, the Board found that new and material evidence had been received to reopen the issue as to whether the appellant's spouse had established "veteran" status for the purpose of meeting basic eligibility requirements for VA death benefits. Pursuant to the January 2019 JMR, the Board remanded the appellant's claim to attempt to verify her spouse's service, including the additional information noted in the JMR. See July 2019 Board decision. In May 2021, the Board again remanded the appeal to the RO for further development. 1. Whether the appellant had a period of verified service for purposes of establishing basic eligibility to VA benefits. The appellant contends that she is entitled to VA death benefits because her husband was a veteran who served with Philippine guerrilla forces during World War II. Specifically, she contends he served with Company H, 2nd Battalion, 11th Infantry Division in the Philippines from August 1941 to April 1943 and was a Prisoner of War (POW) for nine months at Capas Tarlac and Callubang Laguna POW camps. 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 such 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, 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). Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. See 38 U.S.C. § 501(a)(1). Under that authority, the Secretary has promulgated 38 C.F.R. § 3.203(a) and (c), to govern the conditions under which the 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. See 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. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (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. Soria, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. In this case, the appellant filed for DIC and death benefits in which she alleged that her husband had served as a member of the recognized guerrillas from August 28, 1941 to April 15, 1943. As proof of qualifying service, the appellant's husband had submitted an affidavit in support of his claim, as well as a certification from the Armed Forces of the Philippines, dated September 1989, which asserts that he was on the reconstructed roster of guerrilla forces. Additionally, in a March 1993 correspondence, the appellant's husband stated that he served with Company H, 2nd Battalion, 11th Infantry Division from September 1, 1941 to April 26, 1946. In a March 1993 correspondence, the appellant's husband stated that he served with Company H, 2nd Battalion, 11th Infantry Division from September 1, 1941 to April 26, 1946. In September 1983, the United States Army Reserve Personnel and Administration Center reported that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In September 1993, the United States Army Reserve Personnel and Administration Center reported that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, and reported that there was no change to the previous negative certification. In January 1994, the National Personnel Records Center (NPRC) reported that the appellant's husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The AOJ again attempted to verify the appellant's husband's service in October 2020. The AOJ provided copies of all documents and photographs previously provided by the appellant and her husband to the NPRC. Additionally, the AOJ provided a list of all of the units for which the appellant's husband claimed to have served during World War II. The AOJ also provided the names of the husband's next of kin to assist in the records search. 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 noted 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, 1152 (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 afforded the opportunity to challenge 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 Tagupa v. McDonald, 27 Vet. App. 95 (2014), the Court determined that the plain mandatory language of 38 C.F.R. § 3.203(c) required VA to request service verification directly from the service department, as opposed to the NPRC. Id. at 101. 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 that was at issue in Tagupa. A copy of the January 2016 MOA is associated with the claims file. In May 2021, the Board remanded the current appeal to afford the appellant a meaningful opportunity to challenge the service department's determination that her husband 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. See Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (2019); see also Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). In a May 2021 VA letter, the appellant was advised that VA is not able to approve her claim for VA benefits without verification of her husband's service through the Department of the Army. See 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 her husband'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 she 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 she has filed an application with ABCMR to correct her husband's service record, nor has she requested an extension of time in order to file an ABCMR application. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran [or claimant] wishes help, he [or she] cannot passively wait for it in those circumstances where he [or she] may or should have information that is essential in obtaining the putative evidence."). The AOJ waited the full time allotted for the appellant to respond before issuing a supplemental statement of the case denying the appellant's claim for entitlement to VA benefits on the grounds that her husband did not have qualifying service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. See August 2021 supplemental statement of the case. The Board finds that VA has afforded the appellant a meaningful opportunity to challenge the Army's refusal to verify her husband'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. As such, the Board is bound by the service department's finding that the appellant's husband did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. Soria, 118 F.3d at 749. The Board adds that the appellant is free to file a claim with VA in the future should the Department of the Army verify appellant's husband'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 husband had recognized guerrilla and/or Philippine Commonwealth Army (USAFFE) service. Although the appellant contends that her deceased husband had the requisite military service and submitted affidavits of service completed by her husband, the United States service department has determined that the appellant's deceased husband 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 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). The Board is sympathetic to the appellant's arguments, however, the Board must emphasize that it is bound by the law and is without authority to grant the appellant's claim on an equitable basis. 38 U.S.C. § 7104. Neither the Board nor the U.S. Court of Appeals for Veterans Claims (Court) is a body which may provide for equitable relief under any circumstances. See Moffitt, 10 Vet. App. at 225 ("[The] Court [and, by extension, the Board] is not a [forum] of equity and cannot provide equitable relief" (citing Harvey v. Brown, 6 Vet. App. 416, 425 (1994)); cf. Suttmann v. Brown, 5 Vet. App. 127, 138 (1993) (holding that the Board lacks jurisdiction to review the Secretary of VA's exercise of 38 U.S.C. § 503(a) to provide equitable relief at his discretion). That is, the Board cannot go above and beyond what is allowed by specific legislative or regulatory directives (i.e. legal mandates) in the award of benefits (e.g. as enumerated in the United States Code and Code of Federal Regulations). As this is the case, equitable relief cannot be granted. Accordingly, the appellant's claim for entitlement to VA benefits, to include DIC, is denied. J. NICHOLS 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.