Citation Nr: 21009137 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-38 946A DATE: February 19, 2021 ORDER Entitlement to dependency and indemnity compensation is denied. FINDINGS OF FACT 1. The individual (hereinafter referred to as “I.L.”) upon whose service the appellant’s claim is based was not receiving, or entitled to receive, compensation for a service-connected disability. 2. The National Personnel Record Center (NPRC), through its delegated authority from the Department of the Army, certified that I.L. did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. 3. The appellant has been provided a meaningful opportunity to challenge I.L.’s service record with the relevant service department. CONCLUSION OF LAW The criteria required to establish entitlement to DIC have not been met. 38 U.S.C. §§ 101(2), 107; 38 C.F.R. §§ 3.40, 3.41. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to DIC based on the assertion that her spouse, I.L., who passed away in May 1991, had qualifying service in the Philippine Army during World War II. Historically, the Board remanded the issue on appeal in September 2018 and August 2020 for additional development. The agency of original jurisdiction (AOJ) has substantially complied with the Board’s previous remand instructions, and the Board will proceed with a decision on the merits of the appellant’s claim for entitlement to dependency and indemnity compensation. Dependency and indemnity compensation (DIC) may be authorized in certain limited circumstances for individuals with service in the Philippine Commonwealth Army, including certain organized guerilla forces in the service of the United States Armed Forces. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. These circumstances include when an individual is called into service of the Armed Forces of the United States by orders issued from the United States Army pursuant to the Military Order of the President of the United States dated July 26, 1941. The circumstances for individuals with guerilla service include service under a commissioned officer of the United States, or under a commissioned officer of the Philippine Commonwealth Army recognized by and cooperating with the United States Forces. In this case, the appellant submitted a January 1946 Affidavit for Philippine Army Personnel, which indicates that I.L. was inducted as a member of the United States Army Forces in the Far East (USAFFE) in December 1941. In the January 1946 Affidavit, I.L. reported his unit was disbanded in May 1942, and that he was processed out of service in August 1945. In relation to the appellant’s application for DIC, the AOJ requested verification of whether I.L.’s service in the unit identified in the January 1946 Affidavit was qualifying service for purposes of entitlement to DIC. See August 2011 VA Form 21-3101. The NPRC, through its delegated authority from the Department of the Army, certified that I.L. did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. See September 2011 VA Form 21-3101; see also Memorandum of Agreement between the Department of the Army and the National Archives and Records Administration. In March 2012, the appellant provided a Presidential Memorial Certificate signed by President George W. Bush, which recognizes I.L.’s “devoted and selfless consecration to the service of our country in the Armed Forces of the United States.” The appellant asserts that this Certificate should be accepted as verification of I.L.’s service in the United States Armed Forces. Pursuant to the September 2018 Board remand, the AOJ again requested verification of I.L.’s service based on the entire evidence submitted by the appellant in support of her claim for VA benefits, including the Presidential Memorial Certificate. See March 2020 VA Form 21-3101 with associated documents. The AOJ requested verification of I.L.’s service in the units identified the January 1946 Affidavit. In March 2020, the NPRC certified that I.L. did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. See March 2020 VA Form 21-3101. With respect to the appellant’s argument that the Presidential Memorial Certificate should be accepted as verification of I.L.’s service in the United States Armed Forces, the Board notes that the Presidential Memorial Certificate is furnished by VA’s National Cemetery Administration for honorary purposes rather than official service verification. See 38 U.S.C. § 112. The Presidential Memorial Certificate does not confer verification of military service from the appropriate service department or any other agency to whom the service department has delegated authority for verification of service in the United States Armed Forces. See 38 C.F.R. § 3.203; see also Tagupa v. McDonald, 27 Vet. App. 95 (2014). With respect to the appellant’s assertion that I.L.’s cause of death (cardiorespiratory arrest) should be presumptively service-connected under 38 C.F.R. § 3.309(c) based on being a former prisoner of war, the Board observes that I.L. did not indicate on his January 1946 Affidavit that he was ever a prisoner of war. See June 2011 VA Form 21-534; see also Certificate of Death. Importantly in this case, I.L.’s service in the Philippine Commonwealth Army and/or organized guerilla forces has not been recognized as being in the service of the United States Armed Forces. Therefore, I.L. has not been shown to have “active military, naval, or air service” warranting presumptive service connection under any provision of VA regulations. See 38 U.S.C. §§ 101(32), 107; 38 C.F.R. §§ 3.1(y), 3.40, 3.309(c). As an additional matter, the appellant contends that I.L.’s cause of death was due to service, and that I.L.’s disability was established in May 1978. See June 2011 VA Form 21-534. The appellant had previously submitted a private hospital record that is mostly illegible, and a VA application for medical benefits signed by I.L. See VA Form 10-10 received by VA in June 2006. The VA application for medical benefits was completed by a non-VA physician in May 1978, and indicated that I.L. was diagnosed with chronic gastritis that had onset approximately two years earlier. The portion to be completed by VA personnel is blank. In the August 2020 Board remand, the AOJ was instructed to attempt to locate and obtain any VA records or applications for VA benefits submitted by I.L. Despite repeated requests from the AOJ, the appellant has not provided any further identifying information to determine the location of any VA facility where I.L. may have been treated, or the medical conditions and approximate dates of treatment at any VA facility. See August 2011 and September 2020 VA development letters; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). In light of the above, and based on the evidence of record, there is no evidence to otherwise indicate that I.L. was receiving any VA benefits based on qualifying service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. As a final matter, the Board remanded the instant appeal in August 2020 to afford the appellant a meaningful opportunity to challenge the service department’s determination that I.L. 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 September 2020 VA letter, the appellant was advised that VA is not able to approve her claim for VA death benefits without verification of I.L.’s service through the Department of the Army. 38 C.F.R. § 3.203. The appellant was advised to submit an application to the Army Board for Correction of Military Records (ABCMR) to request that I.L.’s service be recognized. The appellant was advised to notify the AOJ within 90 days of receiving the September 2020 VA letter that an application had been submitted to the ABCMR, or to request an extension of the 90 days to file an application with ABCMR. The Board recognizes that the AOJ initially indicated an ABCMR application was filed on the appellant’s behalf. However, in a follow-on letter in September 2020, the AOJ advised the appellant that she was required to submit the application to ABCMR. In compliance with the Board remand, the appellant was provided the necessary forms and information to apply for a correction of I.L.’s service record through the ABCMR. See September 2020 VA development letters. To date, the appellant has not responded to notify VA that she has filed an application with ABCMR to correct I.L.’s service record, nor has she requested an extension of time in order to file an ABCMR application. Wood, 1 Vet. App. at 193. The AOJ waited more than 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 DIC on the grounds that I.L. did not have qualifying service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. The Board finds that VA has afforded the appellant a meaningful opportunity to challenge the Army’s refusal to verify I.L.’s service through the ABCMR. The appellant has not provided any indication that she has filed, or intends to file, a petition with the ABCMR. As such, the Board is bound by the service department’s finding that I.L. 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 I.L.’s service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. As the record currently stands, the Board is constrained to follow the specific provisions of law and regulations, and is without authority to grant the appellant’s claim for entitlement to DIC. 38 U.S.C. § 7104. Accordingly, the appellant’s claim for entitlement to DIC is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.