Citation Nr: 0814202 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-40 851 ) 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) non-service connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The appellant served from April 1942 to June 1945. The appellant indicated that he served with the Commonwealth of the Philippines, Philippines Army. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision dated in November 2004 from the Department of Veteran Affairs (VA) Regional Office (RO), in Manila, Philippines, which determined that the appellant was not eligible for non-service connected pension benefits. During the appeal, the appellant requested a travel board hearing. However, after receiving a RO hearing in February 2007, the appellant withdrew his request for a travel board hearing. No additional action in this regard is needed. FINDING OF FACT There is no evidence that the appellant had service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The appellant did not have the requisite service to render him eligible for VA pension. 38 U.S.C.A. §§ 101, 107, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION "Veteran means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(e). "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). Service as a Philippine Scout is included for pension, compensation and burial allowances, except for those inducted between October 6, 1945 and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. Service in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941 is included for compensation benefits but not for pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. The appellant submitted a document issued by the Philippine Army stating that he served with the Commonwealth Army of the Philippines, with the "L" Company 88th Infantry Regiment, from April 1942 to June 1945. Documents issued by the Philippine Army or Philippine Veterans Affairs Office do not assist an appellant in establishing a claim for pension benefits, as the Philippine government's regulations and laws regarding service are not binding on the U.S. Army Reserve Personnel Command. 38 C.F.R. § 3.203. The appellant's records were requested from the National Personnel Records Center (NPRC). The NPRC stated that there is no service by the appellant as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. As discussed above, service in the Commonwealth Army of the Philippines is included for compensation benefits but not for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Furthermore, the appellant submitted an affidavit signed in June 2005 by two men who swore that they knew the appellant and that he served as a member of the Cobu Guerilla service in 1942. However, as service must be verified by the NPRC as a matter of law, the Board cannot rely on the affidavit to determine the appellant's eligibility regarding his pension benefits. Thus, the appellant's alleged service cannot constitute active military, naval or air service for purposes of establishing entitlement to non-service connected disability pension. 38 U.S.C.A. §§ 107(a), 1521(a); 38 C.F.R. §§ 3.1(d), 3.3(a)(3). The appellant has no basic eligibility for VA non-service connected pension benefits. For this reason, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The appellant received proper VCAA notice in a letter dated September 2004. The letter notified the appellant of the evidence necessary to substantiate a claim for non-service connected VA pension benefits. In any event, this case turns on whether the appellant has qualifying service for basic eligibility for VA non-service connected pension benefits. The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Absent any competent and credible evidence from the appellant indicating his service was otherwise eligible for the requested benefits, there is no need to further attempt to confirm the certification already obtained from the National Personnel Records Center. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided.) ORDER Entitlement to basic eligibility for VA non-service connected pension benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs