Citation Nr: 0814608	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-12 503	)	DATE
	)
	)

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




THE ISSUE

Whether the appellant is a veteran for purposes of 
establishing basic eligibility for VA benefits.  




ATTORNEY FOR THE BOARD

Dan Brook, Associate Counsel






INTRODUCTION

The claimant/appellant alleges service during WWII.  This 
matter is before the Board of Veterans' Appeals (Board) on 
appeal from a November 2005 determination by the Manila 
Regional Office (RO) of the Department of Veterans' Affairs 
(VA).   


FINDING OF FACT

The service department has certified that the appellant had 
no service as a member of the Philippine Commonwealth Army, 
including the recognized guerrillas, in the service of the U. 
S. Armed Forces.


CONCLUSION OF LAW

The appellant is not a veteran, and he is not eligible for VA 
benefits based on his service.  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 FINDING AND CONCLUSION

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in her or his possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Because qualifying service and how it may be established are 
outlined in statute and regulation and because service 
department certifications of service are binding, the Board's 
review in the instant case is limited to interpreting the 
pertinent law and regulations.  The U.S. Court of Appeals for 
Veterans Claims (Court) has held that when the interpretation 
of a statute is dispositive of the issue on appeal, neither 
the duty to assist nor the duty to notify provisions of the 
VCAA are implicated.  Dela Cruz v. Principi, 15 Vet. App. 
143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 
(2000).  Accordingly, the VCAA does not apply in the instant 
case.  Regardless, the appellant did receive adequate VCAA 
notice from the RO through September 2005 and September 2006 
notice letters. 

II.  Facts and Analysis

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.  
See 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).

Service in the Philippine Scouts and in the organized 
military forces of the Commonwealth of the Philippines, 
including recognized guerrilla service, may, under certain 
circumstances, constitute recognized service in the armed 
forces of the United States for VA purposes.  38 C.F.R. §§ 
3.40, 3.41.

Service before July 1, 1946, in the organized military forces 
of the Government of the Commonwealth of the Philippines, 
while such forces were in the service of the Armed Forces of 
the United States pursuant to the military order of the 
President dated July 26, 1941, including among such military 
forces organized guerrilla forces under commanders appointed, 
designated, or subsequently recognized by the Commander in 
Chief, Southwest Pacific Area, or other competent authority 
in the Army of the United States, shall not be deemed to have 
been active military, naval, or air service for the purposes 
of any law of the United States conferring rights, 
privileges, or benefits upon any person by reason of the 
service of such person or the service of any other person in 
the Armed Forces, except for specified benefits including 
disability compensation benefits authorized by chapter 11, 
title 38, United States Code.  38 U.S.C.A. § 107(a); 38 
C.F.R. § 3.40.

For the purpose of establishing entitlement to pension, 
compensation, dependency and indemnity compensation or burial 
benefits, VA may accept evidence of service submitted by a 
claimant, 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; (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.  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 discussed 
above, VA shall request verification of service from the 
service department.  38 C.F.R. § 3.203(c).  The Court has 
held that the findings by the service department verifying a 
person's service are binding on VA for purposes of 
establishing service in the U.S. Armed Forces.  Duro v. 
Derwinski, 2 Vet. App. 530, 532 (1992); see Venturella v. 
Gober, 10 Vet. App. 340 (1997).

In the instant case, the appellant contends that he had 
active U.S. military service as part of the recognized 
Philippine Guerillas from August 1942 to September 1945 and 
that consequently he should be entitled to either service 
connected compensation or non-service connected pension.  To 
support this contention he submitted his own statements, 
along with a certification of Philippine Army service and a 
Philippine Army Form No. 55, showing Philippine Army service 
for a different time frame, from 1951 to 1954.  The 
information submitted by the appellant does not meet the 
first requirement of 38 C.F.R. § 3.203(a) as none of his 
submissions are documents issued by a United States service 
department.  The appellant did not submit a DD Form 214, a 
Certification of Release or Discharge from Active Duty, or an 
original Certificate of Discharge.  Therefore, VA sought 
Service Department verification whether the appellant served 
in the U.S. Armed Forces in the Philippines from August 1942 
to September 1945.  The RO did not seek to verify that the 
appellant's service from 1951 to 1954 because service in the 
Philippine Army after July 1946 could not be deemed to be 
active U.S. military service.  See 38 U.S.C.A. § 107.  An 
initial request was made in September 2005 and a 
reverification request was made in July 2006-based on an 
alternate spelling of the appellant's last name.  In response 
the Service Department indicated in November 2005 and again 
in August 2006 that the appellant "had no service as a 
member of the Philippine Commonwealth Army including the 
recognized guerillas, in the service of the United States 
Armed Forces."  

This certification is binding; VA has no authority to change 
or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530 
(1992).  Moreover, the appellant has provided no further 
evidence that would warrant a request for re-certification 
from the service department.  See Sarmiento v. Brown, 7 Vet. 
App. 80, 85 (1994).  Accordingly the Board finds that the 
appellant did not have the requisite service and is not a 
veteran so as to establish basic eligibility for VA benefits.  
Because the law is dispositive in this matter, the claim must 
be denied because of the absence of legal merit or 
entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).   





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ORDER

The appeal to establish status as a veteran and entitlement 
to VA benefits is denied.




____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs