Citation Nr: 1318269	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  12-12 666	)	DATE
	)
	)

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


THE ISSUE

Entitlement to nonservice-connected disability pension benefits.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The appellant had recognized guerrilla service from June 1945 to February 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The appellant testified at a January 2013 hearing by the undersigned held sitting at the RO.  A transcript of that hearing is associated with the claims file.

The 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).


FINDING OF FACT

The appellant's recognized guerrilla service from June 1945 to February 1946 is not qualifying military service for the purposes of entitlement to nonservice-connected pension benefits.


CONCLUSION OF LAW

The criteria for entitlement to nonservice-connected disability pension benefits are not met.  38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.7, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

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 one or more nonservice-connected disabilities not due to a 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, 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, also referred to as United States Armed Forces in the Far East (USAFFE) and includes 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 claimant 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).  

The appellant claims that he had recognized guerrilla service from June 1945 to February 1946.  The RO conceded this service in the April 2012 statement of the case.  However, as noted above, pension benefits are not available for recognized guerrilla service.  38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.7, 3.40, 3.41, 3.203.  Further, the appellant does not assert, and the record does not reflect, that he had service as a Philippine Scout or had other qualifying service such that the eligibility requirements delineated above would be satisfied; indeed, in his July 2011 notice of disagreement, the appellant specifically denied having had service as a Philippine scout.  38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41.  Accordingly, nonservice-connected pension benefits pursuant to Title 38, Chapter 15 of the United State Code are not warranted, as the appellant lacks the required military service to be eligible.  The Board notes that an unsuccessful claimant who believes there is reason to dispute the report of the service department or the contents of military records can pursue such disagreement with the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).

Otherwise, in cases such as these, where the law is dispositive, the claim must be denied because of the lack of legal merit or the lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002). 


ORDER

Entitlement to nonservice-connected pension benefits is denied. 



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs