12-04 963
12-04 963
| Board of Vet. App. | Mar 31, 2017Background
- Decedent (husband) died in January 1973; appellant is surviving spouse seeking VA death benefits.
- RO issued a July 1973 denial concluding decedent had no recognized U.S. military service; appellant did not appeal and the decision became final.
- Appellant submitted post-1973 evidence (Filipino military certifications, affidavits, Philippine government documents) asserting recognized guerrilla/AFP service.
- NPRC/NARA searches (2011, 2012, and a later 2016 search under a revised MOA) found no U.S. service records, no AGO Form 23, and the decedent was not on the approved guerrilla roster for the 7th Military District.
- Board concluded the 1973 denial was reopened based on new and material evidence but held the NPRC/Army certifications binding: decedent was not a U.S. Armed Forces veteran, so appellant is not eligible for VA death benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence was submitted to reopen the 1973 final denial | Appellant argued newly submitted Filipino service certifications and related documents constitute new and material evidence to reopen the claim | VA/RO argued prior RO findings stood unless new evidence raised a reasonable possibility of substantiating U.S. service; required verification from U.S. service department | Reopened the 1973 denial — Board found documents were new and material and triggered duty to verify |
| Whether decedent is a "veteran" (qualifying U.S. service) for VA death benefits | Appellant argued decedent served as a recognized guerilla/AFP member qualifying him as a veteran for VA purposes | VA relied on NPRC/Army certifications and 38 C.F.R. § 3.203 requiring service-department verification; service-department findings are binding | Denied — Board held NPRC/Army certifications establish no qualifying U.S. service; decedent not a veteran, appellant not entitled to VA death benefits |
Key Cases Cited
- Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (Board must determine whether new and material evidence was received after a final denial)
- Tagupa v. McDonald, 27 Vet. App. 95 (2014) (NPRC response alone did not satisfy VA duty under § 3.203 given ambiguous MOA)
- Duro v. Derwinski, 2 Vet. App. 530 (1992) (service-department findings are binding on VA for establishing U.S. service)
- Shade v. Shinseki, 24 Vet. App. 110 (2010) (low threshold for reopening: new and material evidence raises reasonable possibility of substantiating claim)