Citation Nr: 0813092 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-08 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) nonservice-connected pension benefits. ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The appellant had verified service with the recognized guerillas from June 1944 to December 1945 and with the New Philippine Scouts from January 1946 to January 1949. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines, which, in pertinent part, found that the appellant did not meet the requirements for eligibility for nonservice-connected pension. FINDING OF FACT The appellant's only verified service was with the recognized guerillas from June 1944 to December 1945 and with the New Philippine Scouts from January 1946 to January 1949. CONCLUSION OF LAW The legal criteria for basic eligibility for VA nonservice- connected pension benefits are not met. 38 U.S.C.A. §§ 101, 107, 1502, 1521 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The facts in this case are not in dispute. In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the issue here on appeal. Application of pertinent provisions of the law and regulations will determine the outcome. The Court has suggested that the VCAA could apply to a claim dependent on a determination as to whether there was qualifying service. Pelea v. Nicholson, 19 Vet. App. 296 (2005) (prejudice found when claimant alleged Philippine service that could possibly qualify for benefits); dismissed 20 Vet. App. 93; affirmed 497 F.3d 1290 (Fed. Cir. 2007). The veteran has not, however, alleged service that could lead to veteran status, VA benefits are precluded by law and any notice error is non-prejudicial. See George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007) (lack of prejudice established by demonstrating that benefit could not possibly have been awarded as a matter of law); see also Anderson v. Principi, 18 Vet. App. 371, 373 (2004) (procedural errors are non-prejudicial if claim fails as a matter of law); Valiao v. Principi, 17 Vet. App. 229, 232 (2003) (failure to comply with section 5103(a) constitutes non-prejudicial error where undisputed facts averred by claimant cannot conceivably result in any disposition of appeal other than affirmance); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where law is dispositive, claim should be denied because of lack of entitlement under law). Accordingly, even if VCAA notice or assistance were theoretically required, the veteran is not prejudiced by its absence. No amount of additional evidentiary development would change the outcome of the earlier effective date claim; therefore no VCAA notice is necessary. See also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) and Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"). Analysis The question before the Board is whether the appellant had qualifying service for purposes of eligibility for non- service-connected pension benefits. The record includes service department verification of the appellant's service. Because qualifying service and how it may be established are governed by law and regulations and because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. The interpretation of the law is dispositive of the appeal, and no additional factual development would have any bearing on the ultimate outcome; thus, any defect in the duties to notify and assist the appellant with the development of his claim is harmless error. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The law authorizes the payment of a pension to a veteran of wartime who has the requisite service and who is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willful misconduct. 38 U.S.C.A. §§ 1502, 1521. 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. See 38 U.S.C.A. § 101(2). "Active duty" is defined as full-time duty in the Armed Forces. See 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. See 38 C.F.R. § 3.1. Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, and service in the United States Armed Forces in the Far East (USAFFE) is recognized service for VA compensation benefits, but not for VA nonservice-connected pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. For the purpose of establishing entitlement to pension, VA may accept evidence of service submitted by an appellant, such as a DD Form 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. A copy of an original document is acceptable if the copy was issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) The document contains needed information as to length, time, and character of service; and, (3) In the opinion of VA, the document is genuine and the information contained in it is accurate. Where the appellant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203, the VA shall request verification of service from the service department. Service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In May 1992, in connection with another claim, the designated component of the U.S. service department certified that the appellant had recognized service from June 1944 to December 1945 with the recognized guerillas and from January 1946 to January 1949 with Philippine Scouts. In October 2005, the appellant filed a claim for VA nonservice-connected pension benefits. The appellant reported that he served with recognized guerillas and the Philippine Scouts. In support of his claim, the veteran submitted several documents, including official certifications, showing that he served with the recognized guerillas and Philippine Scouts and was attached to several divisions of the United States Army. This is inconsistent with the verification provided by the service department, and is binding on VA for purposes of establishing service in the United States Armed Forces. Spencer v. West, 13 Vet. App. 376 (2000). The appellant has provided no further evidence that would warrant a request for re-certification from the service department. Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Therefore, although the appellant had recognized service in the USAFFE, that service is not considered to be "active military service" under 38 U.S.C.A. § 101(24), and thus, the appellant is not eligible for VA nonservice-connected pension. 38 U.S.C.A. § 107(a); Cacalda v. Brown, 9 Vet. App. 261, 265-66 (1996). The appellant has pointed out that subsequent to his recognized service, he service with elements of the Philippine armed forces. There is, however, no legal basis for payment of VA benefits on the basis of such service. The law is clear that recognized service in the USAFFE is not qualifying service for establishing entitlement to nonservice-connected pension benefits. There is no competent evidence to contradict the service department's determination with respect to the service of the appellant, and therefore basic eligibility for nonservice-connected pension is not established. As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Basic eligibility for VA nonservice-connected pension benefits is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs