Citation Nr: 1301768	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  10-36 661	)	DATE
	)
	)

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


THE ISSUE

Basic eligibility for legal entitlement to nonservice-connected pension benefits.


ATTORNEY FOR THE BOARD

J. Barone, Counsel



INTRODUCTION

Please note that 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).

The Veteran had service with the recognized guerillas from February 17, 1945 to March 23, 1945.

This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's claim for pension benefits.  Jurisdiction over the Veteran's claims file currently resides with the Manila  RO.

In her August 2010 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran indicated that she wanted a Board hearing.  She subsequently withdrew her request for a Board hearing and indicated that she wanted a hearing before a Decision Review Officer (DRO).  That hearing was scheduled for July 2012.  The Veteran failed to appear for her scheduled hearing.


FINDING OF FACT

The Veteran's only service was with the recognized guerrilla service, in service of the United States Armed Forces in the Far East (USAFFE); such service does not confer eligibility to the appellant for VA nonservice-connected pension benefits.


CONCLUSION OF LAW

The Veteran is not eligible for VA nonservice-connected pension benefits.  38 U.S.C.A. § 107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.40, 3.41 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112   (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

As will be explained below, there is no legal basis upon which the nonservice-connected pension benefits sought may be awarded, and the Veteran's claim must be denied as lacking legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The notice and duty to assist provisions have no effect on an appeal where the law and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).

Analysis

The Veteran seeks entitlement to nonservice-connected pension benefits. 

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 U.S. 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 U.S. 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, which do not include pension benefits authorized by Chapter 15, title 38, U.S. Code. 38 U.S.C.A. § 107(a); 38 C.F.R. §§ 3.40, 3.41.  In other words, the law provides that nonservice-connected pension benefits are not available to Veterans of the recognized guerrilla forces or the Philippine Army.

The findings by the service department verifying a person's service are binding on the VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

A review of the relevant evidence of record shows that it is well established that the Veteran only had service in the recognized guerillas, in service of the USAFFE from February 17, 1945 to March 23, 1945.  The law specifically excludes such service for purposes of entitlement to nonservice-connected pension benefits.  Cacalda v. Brown, 9 Vet. App. 261 (1996) (per curiam).  Consequently, the Board finds that there is no legal basis on which the appellant's claim may be granted.  As the law and not the evidence is dispositive, the claim is denied because of lack of legal entitlement.  Sabonis, 6 Vet. App. at 430; Duro, 2 Vet. App. at 532; 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.40, 3.41.


ORDER

Entitlement to nonservice-connected pension benefits is denied



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs