Citation Nr: 1237708 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-38 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to VA pension benefits. WITNESSES AT HEARING ON APPEAL Appellant and A.B. ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines that determined that the appellant had no legal entitlement to VA benefits. In April 2010, the appellant testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims folder. In December 2010, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. FINDING OF FACT The appellant does not have qualifying military service for purposes of eligibility for VA nonservice-connected pension benefits. CONCLUSION OF LAW The appellant does not meet the criteria for entitlement to basic eligibility for VA nonservice-connected pension benefits. 38 U.S.C.A. §§ 107, 1521, 5107 (West 2002); 38 C.F.R. §§ 3.7, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks to establish his entitlement to VA nonservice-connected pension benefits. 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. "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(d). "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). A Philippine veteran is limited by law to the award of a narrowly defined set of benefits. Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) 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. 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(a), (b). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerilla service) is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203. Importantly, only service department records can establish if and when a person has qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department. Sarmiento v. Brown, 7 Vet. App. 80, 82 (1994); see also Laruan v. West, 11 Vet. App. 80, 82 (1998) (observing that if there is reason to believe that information provided to service department was erroneous (e.g., misspelled name), VA may be required to resubmit request for information to service department.) It has been held that a person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of veteran. D'Amico v. West, 12 Vet. App. 264 (1999) rev'd on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States 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). The appellant claims that he has qualifying service for VA pension benefit purposes. He has testified to undergoing military training from January 1941 to June 1941, being called to active duty on October 29, 1941, and being discharged in 1948. In support of his claim, the appellant has submitted multiple documents which he asserts establish his qualifying active service during World War II. According to statements and testimony of record, the appellant alleges service with the Philippine Commonwealth Army wherein he was involved in combat with the enemy alongside American troops, including being wounded in an arm. He has requested certification under both names listed on the title page, and service numbers "[redacted]" and "[redacted]." The appellant emphasizes that his service has been recognized by the Philippines Veterans Administration by an award of pension. A service record from the Philippine Army reflects that the appellant enlisted under the name [redacted] on October 29, 1941. He was assigned a service number of [redacted]. He was originally assigned to Combat Company, 92nd Infantry. He was discharged at Camp Murphy on February 18, 1946. Administrative remarks indicated that the appellant did not reach Bataan as his unit was disbanded on December 30, 1941, where he remained in active status. He had not sustained any wounds. He was authorized the Asiatic-Pacific Theatre Medal with Bronze Star, the American Defense Service Medal with one Bronze Star, and the Philippine Defense Ribbon. An Affidavit of Army Personnel (PA AGO Form 23), issued by a Summary Court Officer, indicates that [redacted] under service number [redacted], had service with the U.S. Armed Forces of the Far East (USAFFE). It was reported that the appellant was called to active duty on October 29, 1941, and was inducted into the USAFFE on November 17, 1941. He was originally assigned as a private in combat for the 92nd Infantry to guard the Cabanatuan River from November 17, 1941 to December 23, 1941. This company was disbanded after being outnumbered by enemy troops on February 2, 1942. From February 4, 1942 to April 4, 1945, he worked as a civilian farmer. He reported to Camp Murphy on April 5, 1945 for processing. His decorations and citations included the Asiatic Pacific Ribbon, the Philippine Defense Ribbon, the American Defense Ribbon and the Distinguished Unit Badge. A March 1991 Application for Old Age Pension (Veteran) with the Republic of Philippines, Department of National Defense, Philippine Veterans Affairs Office reflects an affidavit of certification with World War II service with the USAFFE under the name [redacted] and service number [redacted]. A May 1991 document issued by the Republic of Philippines, Department of National Defense, General Headquarters of the Armed Forces of the Philippines certifies that the appellant, under the name [redacted], had USAFFE service when assigned to Combat Company, 92nd Infantry (F-23). He was called to active duty (CAD) on October 29, 1941, and inducted on November 17, 1941. He was discharged on February 18, 1946. In November 2011, the RO requested verification of the appellant's active duty status with the National Personnel Records Center (NPRC) via VA Form 21-3101. In so doing, the RO requested verification using 4 possible variations of the appellant's name, and two potential variations of his service number. The RO sent the NPRC copies of all evidence discussed above. In January 2012, the NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas in the service of the US Armed Forces. Following a complete review of the evidence of record, the Board must conclude that there is no showing that the appellant had qualifying military service to establish basic eligibility for VA pension benefits. The NPRC has refused certification in this case based upon consideration of 4 possible variations of the appellant's name, two potential variations of his service number and all relevant documentary evidence. VA is bound to accept the service department's finding as to the existence or absence of qualifying military service. See Soria, 118 F.3d 748 (Fed. Cir. 1997); Duro, 2 Vet. App. at 532 (1992). In view of the foregoing, the Board must conclude that the appellant does not have the type of service, enumerated in the above-cited legal authority, that would establish basic eligibility for VA nonservice-connected pension benefits. Accordingly, the appeal must be denied for a lack of legal merit. See 38 U.S.C.A. § 107(a); 38 C.F.R. § 3.40. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2012). The dispositive issue on appeal concerns whether the appellant has qualifying service for purposes of entitlement to basic eligibility for VA nonservice-connected pension benefits. A pre-adjudicatory RO letter in February 2008 explained to the appellant the types of service required to be considered eligible for these benefits, and the types of evidence and/or information deemed necessary to verify eligible service. The appellant was specifically advised to send in any evidence in his possession that was pertinent to his claim, to include any service records. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has a duty to assist a claimant in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the context of the claim on appeal, VA has a duty to obtain verification from the appropriate service department, and to resubmit verification if there is reason to believe erroneous information has been provided. See Sarmiento, 7 Vet. App. 80, 82 (1994); Laruan, 11 Vet. App. 80, 82 (1998). In this case, the RO obtained a certification from the NPRC based upon consideration of 4 possible variations of the appellant's name, two potential variations of his service number and all relevant documentary evidence as a result of a Board remand requesting another attempt at verification considering all potentially relevant information. See Cappellan v. Peake, 539 F. 3d 1373, 1381-82 (Fed. Cir. 2008) (holding that the appellant has the right to have the NPRC review any service or erroneous information to warrant any further attempts at verification). In this case, the appellant has submitted all official service department records in his possession. However, the service department has refused certification in this case. In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that, when a service department refuses to certify service, there are presumably no documents issued by the service department that the appellant could submit to VA that would show qualifying service under 38 C.F.R. § 3.203. Palor, 21 Vet. App. at 332. Similar to Palor, there are no further means to verify the claimed service by the appellant. In such a situation, no amount of notice or further assistance to the appellant can change the legal outcome. As noted in Soria, and reiterated in Palor, the appellant's "only recourse lies within the relevant service department, not the VA." Soria, 118 F.3d at 749. See Palor, 21 Vet. App. at 333. The Board further notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing in April 2010, this VLJ clarified with the appellant the potential names which may appear on his service record, his potential service numbers and his type of service. The Board then requested another attempt to verify his service with the NPRC based upon all information provided by the appellant. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, this VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. ORDER The claim of entitlement to basic eligibility for VA nonservice-connected pension benefits is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs