Citation Nr: 21010508 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 04-23 955 DATE: February 25, 2021 ORDER Entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits is denied. FINDING OF FACT The appellant’s deceased spouse did not have recognized military service. 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 This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2004 decision of a VA Regional Office (RO) in Manila, the Republic of the Philippines, which denied reopening a previously denied claim for entitlement to VA death benefits based on the absence of new and material evidence. The Board remanded the appeal in May 2006 and again in June 2009. In January 2012, the Board reopened the matter and remanded for additional evidentiary development. In August 2017, the remanded the appeal. Entitlement to basic eligibility for Department of Veterans Affairs (VA) death benefits. The appellant contends that she is entitled to VA death benefits because she is the surviving spouse of 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 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, in January 1969, the National Personnel Records Center (NPRC) reported that the appellant’s spouse 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. With consideration of a different service number for the appellant’s spouse, the NPRC conducted another search. In May 2008, the NPRC reported that it could not identify a record for the spouse under either service number provided by the appellant, although in October 2008 the NPRC reported that if the record had been at the NRPC on July 12, 1973, it would have been in the area that suffered the most damage from a fire and may have been destroyed. Again, in November 2010, the NPRC reported that the appellant’s deceased spouse did not have service as a member of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Forces. Then, in 2017 the Board noted that the 2012 Board remand had erroneously found that the August 2009 JSRRC memorandum referenced in the Board’s 2009 remand “was actually written by a veterans service representative (VSR) on the VA JSRRC team, and it is not an official document from the JSRRC.” Because the 2012 Board remand had indicated that there was a contradiction between the August 2009 and the November 2010 information, another request for verification of service was made in July 2012. However, again in October 2012, the NPRC reported that the appellant's spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Because of an allegation that the appellant’s deceased spouse had been a prisoner-of-war (POW), June 2014 a request was made to the NPRC for such verification, and in December 2014 the response from the NPRC was negative. Pursuant to the Board’s August 2017 remand for further development of the appellant’s eligibility to VA death benefits, another service reverification request was initiated to the NPRC on October 15, 2020. The NPRC was able to complete the request on October 20, 2020, which showed “no change warranted from prior negative certification.” Based upon the foregoing, it is not established that the appellant’s deceased spouse had recognized guerrilla and/or Philippine Commonwealth Army (USAFFE) service. Although the appellant contends that her deceased spouse had the requisite military service and submitted affidavits of service completed by her husband along with certifications by the Philippine government, the United States service department has determined that the appellant’s deceased spouse 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). Because the decedent’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. Accordingly, the appeal is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.