Citation Nr: 21070142 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-43 590 DATE: November 23, 2021 ORDER Legal entitlement to VA death benefits, to include entitlement for one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund, is denied. FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the Appellant's deceased husband had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Unites States Armed Forces. CONCLUSION OF LAW The appellant's deceased husband does not have status as a veteran for purposes of her claim for entitlement to death benefits, to include entitlement for one-time payment from the FVEC Fund; therefore, she does not meet the basic eligibility requirements for VA benefits. 38 U.S.C. §§ 101, 107; 38 C.F.R. §§ 3.1, 3.6, 3.10, 3.40, 3.41, 3.203. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks to establish entitlement to VA death benefits based on her deceased husband's military service. The appellant's husband died in April 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) denying the appellant's claim as the claimant's husband had no verified military service. 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). Legal entitlement to VA death benefits, to include entitlement for one-time payment from the FVEC Fund, is denied. In the instant case, the appellant seeks entitlement to death benefits, to include entitlement for one-time payment from the FVEC Fund, on the basis of her husband's Philippine military service during World War II. As will be discussed in more detail below, the Board finds the appeal must be denied as the appellant's husband has not been shown to have recognized service. During World War II, various military units, including the regular Philippine Scouts, new Philippine Scouts, 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 order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Under the American Recovery and Reinvestment Act enacted in 2009, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund. 38 U.S.C. § 107. An eligible person is defined as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order dated July 26, 1941. That includes any person who served in military units such as the organized guerrilla forces, under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from that service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009). Additionally, the surviving spouse of a deceased veteran who died from a service-connected or compensable disability may be eligible for dependency and indemnity (DIC) benefits or other death benefits. 38 U.S.C. § 1310. In order to qualify for DIC 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 (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); see 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, 101, 107; 38 C.F.R. § 3.40. 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 (1997). 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. If the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d 747. Thus, in cases where verification of the claimed service is required, absent documentation or certification of such service by the relevant service department, a claimant would not be eligible for VA benefits based on such service. Id.; 38 C.F.R. § 3.203. Under 38 C.F.R. § 3.203, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203. Turning to the relevant evidence of record, in support of the claim, the record contains evidence submitted by the husband and appellant including an Affidavit for Philippine Army Personnel, a record of activities and duties, a prisoner of war (POW) application, identification materials, and a Veterans Federation of the Philippines card. The record, however, does not contain a document issued by a service department. Accordingly, 38 C.F.R. § 3.203 requires VA must therefore request verification from the relevant service department. Here, multiple attempts were made to verify the appellant's husband's contended service. Previously in association with the husband's claims for benefits prior to his death, VA sent a request for information in response to which the U.S. Army Reserve Personnel Center responded the subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. See August 1997 request. Following receipt of additional evidence, another request for re-verification was submitted. In February 2012, the NPRC again found the subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. See February 2012 request. In association with the appellant's claim, additional evidence was submitted to the record, prompting even further attempts to verify the husband's contended service. In a July 2017 correspondence, the NPRC again found that upon review of the provided information including a claim folder containing an AGO Form 23, the husband's USAFFE service was not properly established. See July 2017 Request. The correspondence noted that NPRC is unable to accept the Certification from General Headquarters Armed Forces of the Philippines to verify service. Another request for re-verification was submitted in November 2017 with a notation of "no change to prior negative certification." See December 2017 request. In a corresponding letter from the NPRC, it was explained that a claims folder was located prompting retrieval of the corresponding unit rosters to verify if the husband's name was listed in the approved rosters. According to the NPRC, the husband's name was not among those listed on the rosters. As such, service in support of the USAFFE could not be authenticated. Another request for re-verification was submitted in 2020 with a notation "no change warranted to prior negative certification" and a stamp indicating "subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." See February 2020 request. The record also contains a September 2020 administrative decision finding that the appellant's husband does not have recognized active military service in the Philippine recognized guerillas for entitlement to VA benefits. See September 2020 VA Memo. While the appellant's husband's name was listed as a common name in the Reconstructed Recognized Guerrilla Roster maintained by the Manila VA RO, the NPRC advised that the claimant's husband had no valid military service as a member of the Philippine Commonwealth Army. As VA is bound by the service departments records, VA found the claimant's husband did not have active or recognized military service, and therefore, he was not considered to be a "Veteran" for VA purposes and has not met the threshold requirement for eligibility. Based on the above evidence, the Board concludes that the appellant is not eligible for death benefits, to include from the FVEC Fund, as a matter of law because the evidence fails to establish that her deceased husband had the requisite qualifying military service. Notably, none of the documents submitted by the appellant satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate service department. As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits. Thus, although the appellant contends that her deceased husband did indeed have the requisite service for her to be eligible for VA benefits, the lack of certification from the Department of the Army is binding on VA. Duro, 2 Vet. App. at 532; 38 C.F.R. § 3.203(c). Accordingly, the appellant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d at 749. Accordingly, because the Department of the Army failed to certify that the decedent had the requisite service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant's deceased husband, on whose service she predicates her claim, has not achieved veteran status for purposes of establishing her eligibility for VA benefits. Based on the forgoing, the Board finds the claim must be denied as a matter of law. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.