Elarde v. Derwinski

Veterans Claims

Elarde v. Derwinski

1 Vet. App. 562, 1991 U.S. Vet. App. LEXIS 138, 1991 WL 255209

CourtUnited States Court of Appeals for Veterans Claims

DecidedAugust 28, 1991

DocketNo. 90-1459

StatusPublished

This text of 1 Vet. App. 562 (Elarde v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elarde v. Derwinski, 1 Vet. App. 562, 1991 U.S. Vet. App. LEXIS 138, 1991 WL 255209 (Cal. 1991).

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Opinion

MEMORANDUM DECISION

MANKIN, Associate Judge:

Appellant, Inocencia L. Elarde, is the widow of Dionisio Elarde. R. at 9. Mr. Elarde entered service in 1946 (R. at 11) and was discharged as a private from the [New] Philippine Scouts in April of 1949. R. at 8; see also 38 C.F.R. § 3.8(b) (all enlistments of Philippine Scouts between October 6, 1945, and June 30, 1947, were into the [New] Philippine Scouts); see generally Quiban v. Veterans Admin., 928 F.2d 1154, 1157-58 (D.C.Cir.1991). Mr. Elarde died in 1966. R. at 9. Appellant filed her claim for burial benefits in 1989. Based upon these facts the Board of Veterans’ Appeals (BVA) found that: “The serviceman did not have qualifying service for the appellant to receive burial benefits.” Inocencia Elarde, BVA [not available] (Aug. 13, 1990). The Court affirms.

Among other limitations, the payment of burial expenses is limited to the burial of deceased veterans. 38 U.S.C. § 902 (1988); 38 C.F.R. § 3.1600 (1990). “The term ‘veteran’ means 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) (1988).

Title 38 United States Code, section 107(b) (1988), states in part:

Service in the [New] Philippine Scouts ... shall not be deemed to have been active military, naval, or air service for the purposes of any of the laws administered by the [Department of Veterans Affairs] [with exceptions not applicable].

(Emphasis added). The constitutionality of .§ 107(b) was recently sustained. See Qui-ban. While the Court is not bound by the determination of the District of Columbia Circuit, the Court has been offered no basis to question the conclusion reached in Qui-ban.

After consideration of the supporting memoranda and review of the record, it is the holding of the Court that appellant has not demonstrated that the BVA committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the BVA decision satisfies the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly 3007(b)). See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). [563]*563Summary disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990).

The decision of the BYA is summarily AFFIRMED.

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MEMORANDUM DECISION

MANKIN, Associate Judge:

Appellant, Inocencia L. Elarde, is the widow of Dionisio Elarde. R. at 9. Mr. Elarde entered service in 1946 (R. at 11) and was discharged as a private from the [New] Philippine Scouts in April of 1949. R. at 8; see also 38 C.F.R. § 3.8(b) (all enlistments of Philippine Scouts between October 6, 1945, and June 30, 1947, were into the [New] Philippine Scouts); see generally Quiban v. Veterans Admin., 928 F.2d 1154, 1157-58 (D.C.Cir.1991). Mr. Elarde died in 1966. R. at 9. Appellant filed her claim for burial benefits in 1989. Based upon these facts the Board of Veterans’ Appeals (BVA) found that: “The serviceman did not have qualifying service for the appellant to receive burial benefits.” Inocencia Elarde, BVA [not available] (Aug. 13, 1990). The Court affirms.

Among other limitations, the payment of burial expenses is limited to the burial of deceased veterans. 38 U.S.C. § 902 (1988); 38 C.F.R. § 3.1600 (1990). “The term ‘veteran’ means 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) (1988).

Title 38 United States Code, section 107(b) (1988), states in part:

Service in the [New] Philippine Scouts ... shall not be deemed to have been active military, naval, or air service for the purposes of any of the laws administered by the [Department of Veterans Affairs] [with exceptions not applicable].

(Emphasis added). The constitutionality of .§ 107(b) was recently sustained. See Qui-ban. While the Court is not bound by the determination of the District of Columbia Circuit, the Court has been offered no basis to question the conclusion reached in Qui-ban.

After consideration of the supporting memoranda and review of the record, it is the holding of the Court that appellant has not demonstrated that the BVA committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the BVA decision satisfies the “reasons or bases” requirements of 38 U.S.C. § 7104(d)(1) (formerly 4004(d)(1)), and the benefit of the doubt doctrine of 38 U.S.C. § 5107(b) (formerly 3007(b)). See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). [563]*563Summary disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990).

The decision of the BYA is summarily AFFIRMED.

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1 Vet. App. 562, 1991 U.S. Vet. App. LEXIS 138, 1991 WL 255209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elarde-v-derwinski-cavc-1991.

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