Citation Nr: 21040013 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-22 790 DATE: July 2, 2021 ORDER Entitlement to nonservice-connected death pension benefits is denied. Entitlement to VA benefits based on the need for regular aid and attendance or on account of housebound status is denied. Entitlement to service connection for the cause of death is denied. Entitlement to burial benefits is denied. FINDINGS OF FACT 1. For VA pension benefits, the servicemember does not have the requisite active service; the appellant is not eligible to receive VA nonservice-connected death pension benefits. 2. As the servicemember does not have the requisite active service and his surviving spouse is not eligible to receive nonservice-connected death pension benefits, she is also not eligible for a higher rate of death pension based on the need for regular aid and attendance of another person or on account of being housebound. 3. The servicemember died in January 2007. The cause of death was pneumonia. 4. The appellant's application for burial benefits was received in October 2009. 5. At the time of his death, the servicemember had not been granted service connection for any disability. 6. Pneumonia did not have onset in service and is not otherwise related to active service. 7. The servicemember's death was not due to a service-connected disability and/or otherwise attributable to his service. CONCLUSIONS OF LAW 1. The criteria for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 107, 1521 (2012); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41 (2020). 2. The criteria for VA benefits based on the need for regular aid and attendance or on account of housebound status have not been met. 38 U.S.C. §§ 101, 1501, 1521, 1541 (2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.7 (2020). 3. The criteria for service connection for the cause of death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2020). 4. The criteria for burial benefits have not been met. 38 U.S.C. §§ 2302, 2303 (2012); 38 C.F.R. §§ 3.1600-1612 (2014) (now 38 C.F.R. §§ 3.1700 through 3.1713 (2020)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The servicemember served in the Philippine Commonwealth Army, also known as the United States Armed Forces in the Far East (USAFFE) from November 1941 to April 1942 and from August 1945 to May 1946. He died in January 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board acknowledges that the appellant requested a Board hearing scheduled in April 2015. A letter notifying her of the hearing was mailed to her last known address in February 2015. The appellant did not appear at the hearing or assert good cause for her failure to appear. To date, she has not requested rescheduling. The hearing is therefore considered withdrawn. 38 C.F.R. § 20.704(d). In June 2015, the Board remanded the claims for additional development. The matter has since been returned to the Board for adjudication. 1. Entitlement to nonservice-connected death pension benefits The appellant asserts that the servicemember served as a member of the USAFFE, Philippine Guerilla Service, and was a prisoner of war (POW) from April 9, 1942, to April 11/12, 1942, which would entitle her to nonservice-connected death pension benefits. VA death pension benefits are payable to a veteran's surviving spouse based on the veteran's nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. § 3.23 and 38 C.F.R. § 3.24. 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4); 3.23(a)(5), (d)(5). In order to establish basic eligibility for VA pension benefits, it is required, in part, that the individual based on whose service the pension is claimed be a veteran who had active military, naval, or air service. 38 U.S.C. §§ 101(2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. 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). Active military, naval, and air service includes active duty. Active duty is defined as full-time duty in the Armed Forces. 38 C.F.R. §§ 3.6(a), (b). The Armed Forces consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. VA recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101; 38 C.F.R. § 3.2. Persons with service in the United States Army Forces in the Far East (USAFFE), including service with the Recognized Guerrillas, the Commonwealth Army of the Philippines (Regular Philippine Army), or service with the New or Special Philippine Scouts under Public Law 190, 79th Congress, shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to nonservice-connected disability pension benefits. 38 U.S.C. § 107; 38 C.F.R. § 3.40(b), (c), (d). 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 (Fed. Cir. 1997). Following World War II, a reconstructed roster of recognized guerilla members and units was compiled. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. Id. at 749. 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(c). Here, the U.S. Army Reserve Personnel Center indicated that the servicemember served in the Philippine Commonwealth Army from November 20, 1941, to April 8, 1942. He had no casualty status from April 9, 1942, to August 15, 1945, and was absent without leave (AWOL) from August 16, 1945, to August 22, 1945. He reentered service with the Philippine Commonwealth Army from August 23, 1945, to May 20, 1946. In a signed June 1955 Affidavit, the servicemember confirmed service in the USAFFE from November 1941 to April 1942. After, he stated that he was "in the hands of Japanese soldiers [then] I made my escape and hid myself in remote barriers to avoid being captured again." He indicated that he joined the Guerilla service in August 1943 and confirmed that he was honorably discharged in May 1946. See also March 2002 VA 21-4138 Statement in Support of Claim. In a July 2002 VA Memo, the RO found that the evidence in its entirety does not support the servicemember was a POW during the period from April 9, 1942, to April 11, 1942. In August 2010, the RO asked the National Personnel Records Center (NPRC) to verify the servicemember's status as a POW. In September 2010 and November 2010, the NPRC provided a negative response because there is no positive determination from the War Claims Commission (WCC) that the servicemember was a POW. In November 2010 and February 2011, the RO determined that the servicemember could not be recognized as a former POW. In a December 2012 letter, the NPRC stated that the servicemember's service from November 1941 to May 1946 with the Philippine Commonwealth Army is not considered as active service in the United States Army. In June 2015, the Board remanded the claim to seek verification of service with the Department of the Army, to include verification of POW status. See Tagupa v. McDonald, 27 Vet. App. 95 (2015) (holding that absent evidence of statutorily delegated duty, the plain meaning of VA's regulations requires verification of service from the relevant service department). In a December 2015 Memorandum, the Department of the Army provided a negative response to the servicemember's claimed POW status determination. The Department of the Army acknowledged that the claims folder contained a negative response from the WCC, as the Department of the Army abides by WCC decisions, it concluded that the alleged period of confinement did not occur. Similarly, in February 2021, the NPRC, again, stated that the servicemember did not acquire POW status. In an April 2021 Administrative Decision, the RO upheld its prior February 2011 decision that the servicemember has no POW status. The Board acknowledges the appellant's argument that the servicemember was a POW from April 9, 1942, to April 11/12, 1942. In support of this contention, the appellant submitted a military certification from the Office of the Adjutant General issued by the Armed Forces of the Philippines, dated July 2011, listing that the Veteran was a POW during the claimed timeframe. She has also submitted various affidavits from former military and family members attesting that the deceased servicemember was a POW. However, the appellant and other lay persons are not competent to opine on the servicemember's service as a Veteran. To this regard, VA has made numerous attempts, as detailed above, to confirm the claimed POW status. The NPRC, Department of the Army, and WCC considered the appellant's contentions, but concluded that the servicemember did not acquire POW status. Where service department certification is required, the service department's decision on the matter, which in this case is the Department of the Army (see December 2015 Memorandum), is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203(c). While the appellant believes that the servicemember's service is qualifying service, under governing VA laws and regulations, service in the Philippine Commonwealth Army and the Philippine Guerilla Service is not qualifying service for nonservice-connected death pension benefits. 38 U.S.C. § 107; 38 C.F.R. §§ 3.40, 3.41. The Board is legally precluded from finding otherwise. 38 C.F.R. § 20.101. Accordingly, the Board finds that the basic eligibility requirements for nonservice-connected death pension benefits are not met. 38 U.S.C. §§ 1521(j), 1541; 38 C.F.R. § 3.3. As the disposition of this issue is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Mason v. Principi, 16 Vet. App. 129 (2002); Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to VA benefits based on the need for regular aid and attendance or on account of housebound status The appellant contends that she should be awarded VA compensation based on the need for regular aid and attendance as a surviving spouse. Under VA laws and regulations, an additional compensation allowance is payable to a surviving spouse by reason of need for aid and attendance or by reason of being housebound. See 38 C.F.R. § 3.351. However, the appellant is not eligible for nonservice-connected pension benefits because the requirements for basic eligibility for VA compensation purposes have not been met. As discussed in detail above, the deceased servicemember did not meet the service requirements to be a "veteran" for nonservice-connected pension purposes. See 38 U.S.C. §§ 101 (2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. The Board is without authority to grant the appellant's claim and is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104, Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, as the appellant is not an eligible claimant for entitlement to death pension benefits, an additional compensation based on need for aid and attendance or on account of housebound status is denied. 3. Entitlement to service connection for the cause of death In her Application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits, the appellant claimed service connection for the cause of servicemember's death. The cause of death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board finds that service connection for the cause of death has not been established. The servicemember died in January 2007, at the age of 88. His death certificate lists the cause of death as pneumonia. Given that the death certificate lists the cause of death as pneumonia, the first element of service connection, a current disability, has been established. At the time of the servicemen's death, service connection had not been established for any disability. The Board concludes that, while the servicemember had a diagnosis of pneumonia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records contain no complaints of or treatment for pneumonia or related symptoms. On May 1946 separation, physical examination was normal. The appellant indicated that the servicemember received private medical treatment for his condition. VA has attempted to obtain these records, but they are unavailable. In a May 2011 letter, a private physician stated that medical records pertaining to the servicemember "were all destroyed by rodents and termites." Further, the private physician indicated that he could not comment on the cause of death because he could not recall any information about the servicemember. See July 2015 Correspondence. The Board acknowledges that no VA opinion has been obtained on the cause of death. However, there is no evidence establishing an in-service disease or injury relevant to the cause of the servicemember's death. Thus, VA has no duty to obtain a medical opinion in this case. Mclendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While the appellant has argued that the servicemember's cause of death resulted from service, she has not provided any specific contentions or identified an in-service injury. There is no opinion from any competent medical professional adopting a similar view. The Board notes that pneumonia is not a simple ailment; rather, it is medically complex, does not lend itself to lay observation, and has a myriad of risk factors. As such, the appellant is not competent to render an opinion that the servicemember's death was due to service. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 n.4 (Fed. Cir. 2007); Rucker v. Brown, 10 Vet. App. 67, 74 (1999). Because a preponderance of the evidence weighs against the claim for service connection for the cause of death, the appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the appellant a favorable decision. See 38 U.S.C. §§ 1310, 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.312. 4. Entitlement to burial benefits Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653- 32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for benefits pending on or after July 7, 2014. (The claim for burial benefits has been pending since October 2009, before the effective date of the rule change on July 7, 2014.) Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and former provisions, with due consideration to the effective date of the changes and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the old regulations, in effect at the time the claim was filed in October 2009. It is noted, at the outset, that claims for a burial allowance may be advanced only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." 38 C.F.R. § 3.1601(a)(1) (now at 38 C.F.R. § 3.1702 (b)(3)). An application for nonservice-connected burial benefits must be filed within two years after the burial or cremation of the veteran's body. 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or interment. The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran's body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1703(a). Here, the appellant filed a burial application in October 2009, more than two years after the servicemember's death in January 2007. Because claims for nonservice-connected burial benefits and plot or interment allowance were not timely filed, the Board has no jurisdiction to adjudicate the merits of these claims and they must be denied as a matter of law. Accordingly, only eligibility for service-connected burial benefits will be considered. As stated, the servicemember died in January 2007 due to pneumonia. In order to award service-connected burial benefits, service connection for the cause of the death must be in effect. See 38 C.F.R. § 3.1700. Pursuant to this decision, service connection for the cause of death has not been established. As service connection for the cause of death has not been established, service-connected burial benefits may not be awarded. The Board is bound by the governing legal authority and is without authority to grant benefits on an equitable basis. Here, there is no legal basis to award burial benefits and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.