Citation Nr: 22044294 Decision Date: 08/03/22 Archive Date: 08/03/22 DOCKET NO. 16-35 321 DATE: August 3, 2022 ORDER The Servicemember was not a veteran of the United States Armed Forces and the Appellant, the surviving spouse, is not entitled to benefits from the Department of Veterans Affairs (VA). FINDING OF FACT The Servicemember had no military service in any branch of the United States Armed Forces. CONCLUSION OF LAW The Appellant is ineligible to receive VA benefits. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6, 3.7, 3.40. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Servicemember's service does not entitle him or his dependents to VA benefits. The Servicemember died in April 1998. The Appellant seeks surviving spouse benefits. This case was previously before the Board in June 2018 and August 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. Whether the Servicemember had service to establish eligibility for VA benefits, to include service connection for cause of death and death pension benefits A veteran is a person who served in the active military, naval, or air service, and was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes active duty, which is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. 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. A prisoner of war (POW) is defined as a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in line of duty by an enemy or foreign government, by the agents of either, or by a hostile force. 38 U.S.C. § 101(32); 38 C.F.R. § 3.1(y). Certain service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including particular guerrilla service, is recognized service for specified VA purposes. 38 U.S.C. § 107; 38 C.F.R. §§ 3.7, 3.40. That service includes those who served: (1) 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 of the President dated July 26, 1941, including 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; or (2) in the Philippine Scouts under Section 14 of the Armed Forces Voluntary Recruitment Act of 1945; and was discharged or released from service under conditions other than dishonorable. 38 U.S.C. § 107. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. When service department certification is required, the decision of the United States service department is conclusive and binding on VA. 38 C.F.R. § 3.203(c); Thus, if the service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria, 118 F.3d at 749. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203; Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530 (1992). In this case, the Appellant has submitted documentation of her spouse's service in Philippine forces in four different units: (1) B Co Gen Serv 2nd Div PA, (2) D Co 1st Bn Reg Div USAFFE (U.S. Armed Forces in Far East), (3) 3rd Bn 4th Inf Regt 2nd Reg Div, and (4) 3d MP Co AFP. The Appellant conceded that the affidavit of service and various certifications from the Philippine government are the only documentation she has of the Servicemember's service. The Appellant has also alleged that her spouse was a POW from April 1942 to October 1942, based on the documentation submitted. In April 2004, VA requested verification of the Servicemember's service from National Personnel Records Center (NPRC) using the Servicemember's full name, place of birth, date of birth, date of death, dates of service, and the unit designation of B Co Gen Serv 2nd Div PA with the USAFFE that was provided by the Appellant in the supporting documents. In May 2004, the NPRC responded that the Servicemember had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In January 2014, VA again requested verification of the Servicemember's service from NPRC using his full personal details, and specifying service in the B and D Companies. The NPRC responded that no change was warranted in the prior negative certification. The NPRC also noted that there was evidence of a POW claim with the War Claims Commission (WCC), but the WCC determined that the alleged period of confinement did not occur. The service department stated that it abided by that determination. In December 2020, VA made another request for verification to the NPRC and Department of the Army, using the Servicemember's full personal details and giving the unit information for the B and D Companies, and the two designations for the Military Police unit included in the Appellant's documentation. In March 2021, the NPRC responded again that no change was warranted from the prior negative certification, and that the service department abided by the WCC decision that the Servicemember had not attained POW status. In September 2021, VA made a request for verification to the NPRC and Department of the Army, using the Servicemember's full personal details, attaching the documentation provided by the Appellant, and using the designations of the B and D company units and the 3rd Battalion unit found in the documentation. The NPRC again responded that the Servicemember has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The Board notes that, although VA only sought verification of the Servicemember's service through channels with the NPRC, these requests satisfy the governing law that verification be made with the service department, as the Department of the Army has clarified that the NPRC may perform this function. Tagupa v. McDonald, 27 Vet. App. 95 (2014). Further, the Board notes the Appellant was given notice and opportunity to correct the Servicemember's records regarding inclusion on the approved roster, and she did not submit any evidence that she had attempted to do so. Dela Cruz v. Wilkie, 931 F.3d 1143 (Fed. Cir. 2019) (claimants must be given meaningful opportunity to challenge the service record rather than simply relying on service department's determination that the name is not on the reconstructed roster). In this case, the Appellant's spouse was not listed on a unit roster approved by the Army, and his service in support of the USAFFE in any of the provided unit designations could not be corroborated. The United States Department of the Army and the NPRC have certified that the Servicemember did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. When service department certification is required, the decision of the United States service department is conclusive and binding on VA. 38 C.F.R. § 3.203(c). Further, the documents provided by the Appellant do not satisfy the requirements of the regulations as acceptable proof of service, as these are not official documents of an appropriate United States service department or the NPRC. 38 C.F.R. § 3.203. Accordingly, although the record establishes that the Servicemember served in some capacity during World War II, the record does not indicate that the Servicemember had any qualifying service in order to meet the basic eligibility criteria for establishing entitlement to VA benefits. Therefore, the claim must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.