Citation Nr: 0810935	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  03-30 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUE

Basic eligibility for Department of Veterans Affairs (VA) 
benefits.


REPRESENTATION

Appellant represented by:	Imelda Llorin-Labastida


ATTORNEY FOR THE BOARD

T.S. Willie, Associate Counsel


INTRODUCTION

The current appeal arises from a June 2003 determination by 
the Manila, Republic of the Philippines, VA Regional Office 
(RO) in which the RO determined that the appellant was 
ineligible for VA benefits, on the basis that he did not have 
qualifying military service.

In February 2005, the Board issued a decision finding that 
basic eligibility for VA benefits had not been established.  
The appellant appealed that decision to the United States 
Court of Appeals for Veterans Claims (Court).  In November 
2006, the Court granted a Joint Motion for Remand to the 
Board (Joint Motion) vacated, the Board's prior decision, and 
remanded the case to the Board.  In May 2007, the Board 
remanded the case to the RO for the issuance of a proper 
Veterans Claims Assistance Act of 2000 (VCAA) letter.  


FINDINGS OF FACT

1.  In June 2003, July 2003 and September 2007, the service 
department certified that the appellant had no service as a 
member of the Philippine Commonwealth Army (USAFFE), 
including the recognized guerillas, in the service of the 
United States Armed Forces.

2.  The appellant is not shown to have had active military, 
naval, or air service, and is not an individual or a member 
of a group considered to have performed active military, 
naval, or air service.


CONCLUSION OF LAW

The appellant does not have status as a veteran for purposes 
of this claim, and therefore the appellant does not meet the 
requirements of basic eligibility for VA benefits. 38 
U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 
3.41, 3.203 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSION
        
        Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2006), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  In addition, VA must also request 
that the veteran provide any evidence in the claimant's 
possession that pertains to the claim.  

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 
(2004).  

The timing requirement enunciated in Pelegrini applies 
equally to the initial disability-rating and effective-date 
elements of a service connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).  

The record reflects that the originating agency provided the 
appellant with the notice required under the VCAA by letter 
dated in July 2007.  While the letter was sent to the 
appellant after the initial adjudication of this case, the 
Board finds that the appellant has been given sufficient 
notice and has not prejudiced thereby because notice was 
given prior to the readjudication of the case.  See Mayfield 
v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other 
grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefits sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007).  
In connection with the current appeal, appropriate records 
have been obtained.  The appellant has not identified any 
outstanding evidence that could be obtained to substantiate 
the claim.  The Board is also unaware of any such evidence.  

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence 
necessary to substantiate the claim.  The evidence of record 
provides sufficient information to adequately evaluate the 
claim, and the Board is not aware of the existence of any 
additional relevant evidence which has not been obtained.  No 
further assistance to the appellant with the development of 
evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 
3.159(d).

Regardless of any VCAA violation, to include a timing 
violation, the appellant has had full notice of the reasons 
for the decision and has been provided a full opportunity to 
participate in the claim and the appeal. Furthermore, there 
has been no frustration of the intent of VCAA as all 
appropriate development was actually conducted.  This is 
clearly distinguishable from the situation wherein there has 
been inadequate development.  Here, no VCAA error affected 
the fundamental fairness of this adjudication. 

Accordingly, the Board will address the merits of the claim.  

					Factual Background

The appellant filed a claim for VA benefits in November 2000.  
Since filing his claim the appellant has submitted various 
documents including: a document from the Headquarters of the 
Vinzons Division Turko Command; documents from the Republic 
of the Philippines Department of National Defense Office of 
the Military Service Board; a Confirmation of Military 
Service; a marriage contract, medical records of St. John 
Hospital and a medical certificate of Sipocot District 
Hospital; and affidavits from appellant himself and others.  
The record also includes the appellant's testimony at a 
December 2003 personal hearing at the RO as well as his 
contentions as presented in written correspondence.

The appellant contends that he served as a guerilla of the 
Turkos Command 5th Military District, 55th Division of the 
54th Infantry Regiment.  According to him, he enlisted in 
June 1943 and in December 1943 he was inducted at the 
Caramoan General Headquarters of Vinzons Turko Command.  The 
appellant maintains that he separated from service in May 
1945.

In June 2003, July 2003 and September 2007, the National 
Personnel Records Center (NPRC) certified that the appellant 
had no service as a member of the USAFFE, including the 
recognized guerillas, in the service of the United States 
Armed Forces.

				Legal Criteria and Analysis 

Eligibility for VA benefits is governed by statutory and 
regulatory law which defines an individual's legal status as 
a veteran of active military, naval, or air service.  38  
U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6 (2007).

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.A. § 101(2); 38 C.F.R. § 3.1(d).  A 
"service-connected" disability is a disability that was 
incurred or aggravated in the line of duty during active 
military, naval, or air service.  38 U.S.C.A. § 101(16); 38 
C.F.R. § 3.1(k).  "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).

"Armed Forces" consists of the United States Army, Navy, 
Marine Corps, Air Force, and Coast Guard, including their 
Reserve components.  38 C.F.R. § 3.1.

Additionally, 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.A. § 107; 38 C.F.R. §§  
3.40, 3.41.

For the purpose of establishing entitlement to pension, 
compensation, dependency and indemnity or burial benefits, VA 
may accept evidence of service submitted by a claimant, such 
as a DD 214, Certificate of Release or Discharge from Active  
Duty, or original Certificate of Discharge, without 
verification from the appropriate service department if the 
evidence meets the following conditions: (1) the evidence is 
a document issued by the service department, (2) the document 
contains needed information as to length, time, and character 
of service; and (3) in the opinion of the VA the document is 
genuine and the information contained in it is accurate.  38  
C.F.R. § 3.203(a).

When the claimant does not submit evidence of service or the 
evidence submitted does not meet the requirements of this 
section, VA shall request verification of service from a 
service department.  38 C.F.R. § 3.203.  With regard to 
Philippine service, certifications by the service department 
will be accepted as establishing periods of recognized 
service as a Philippine Scout, a member of the Philippine  
Commonwealth Army serving with the Armed Forces of the United  
States, or as a guerrilla.  38 C.F.R. §§ 3.20, 3.41.  
Moreover, the United States Court of Appeals for Veterans 
Claims Court has held that a service department determination 
as to an individual's service shall be binding on the VA.  
Duro v. Derwinski, 2 Vet. App. 530 (1992);  Dacoron v. Brown, 
4 Vet. App. 115, 120 (1993).

In this claim, the appellant maintains that he had service 
that should make him eligible for VA benefits.  He has 
submitted various documents, to include a Certification of 
the United States Philippines Armed Forces; a document from 
the Headquarters of the Vinzons Division Turko Command and 
documents from the Republic of the Philippines Department of 
National Defense Office of the Military Service Board.  
However, he was not submitted a DD 214 (or substitute based 
upon the dates of his claimed service such as a 53-55), 
Certificate of Release or Discharge from Active Duty, or 
original Certificate of Discharge.  In June 2003, July 2003 
and September 2007, the service department certified that the 
appellant had no service as a member of the USAFFE, including 
the recognized guerillas, in the service of the United States 
Armed Forces.  As noted above, the Court has held that a 
service department determination as to whether an individual 
had qualifying service is binding on VA.  See Duro; Dacoron.  
The service department has determined that the appellant had 
no qualifying service.  The documents submitted by the 
appellant do not comply with section 3.203 as such were not 
issued by the service department.  In the context of this 
regulation, the Board concludes that the term service 
department means an entity recognized by the United States 
Government rather than a service department of a foreign 
government. 

The Board notes that the appellant has not provided 
information pertaining to his service which differs from that 
upon which the service department certification is  based.  
Therefore, inasmuch as the service department's determination 
as the service of the appellant is binding on VA, the Board 
concludes that the appellant is not considered a "veteran" 
for purposes of entitlement to VA benefits.  Therefore, the 
appellant's claim for entitlement to VA benefits must be 
denied as a matter of law.  See Sabonis v. Brown, 6 Vet.  
App. 426, 430 (1994). 


ORDER

Basic eligibility for VA benefits is denied.  



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs