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