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). (CONTINUED ON NEXT PAGE) 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