Citation Nr: 1318272 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 12-32 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for residuals of a head wound. 2. Entitlement to service connection for residuals of a right thumb wound. 3. Entitlement to non service-connected pension benefits. WITNESSES AT HEARING ON APPEAL Appellant, H.D., and A.T. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had recognized guerrilla service from March 1945 to June 1945 with extended missing service from September 1943 to March 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 201 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In January 2013, the Veteran, H.D., and A.T. testified during a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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). FINDINGS OF FACT 1. The appellant does not have a current diagnosis of a head wound nor have residuals of a head wound been shown. 2. The appellant does not have a current diagnosis of a right thumb wound nor have residuals of a right thumb wound been shown. 3. The appellant's only service was with recognized guerrilla service and that service does not confer eligibility to the appellant for VA nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a head wound have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for residuals of a right thumb wound have not been met. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 , 3.159, 3.303 (2012). 3. The appellant 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 FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a May 2011 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2012 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran alleges that he sustained a wound to the head and his right thumb during combat. When asked during the January 2013 Board hearing as to the Veteran's current problems with his right thumb, the Veteran responded that he did not feel any pain or anything anymore and had no symptoms whatsoever. It was noted that visibly it looked different than the thumb on his left hand. The Veteran has submitted affidavits from others who served with him stating that the Veteran was injured in his head and right thumb. The Veteran has stated that there are no service records as to his injuries because it was during World War II and there was no available medical facilities. He treated the wounds with herbal medicines. An Affidavit for Philippine Army Personnel shows that the Veteran denied any wounds or illness incurred from December 1941 to his date of return to military control. Although a May 2011 letter to the Veteran requested that he identify and provide authorization to obtain medical records for post-service treatment of the claimed disabilities, the only response received from the Veteran was an August 2011 letter. In that letter the Veteran stated that he went to "some hospitals for medical check-up" for his wounds in the head and thumb, but it became futile as the doctors refused to give him a prescription. In this case, there is no post-service evidence of record of diagnoses of or treatment for a head wound or right thumb wound, or any residuals thereof. Absent evidence of a current disability, service connection for residuals of a head wound and for a right thumb wound must be denied. There is no competent medical evidence of record that demonstrates the presence of a head wound or right thumb wound, and a residual disability. Therefore, the Board finds that service connection for a head wound and a right thumb wound is not warranted. As the preponderance of the evidence is against each of the claims for service connection, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). Nonservice-Connected Pension Benefits 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 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, which do not include pension benefits authorized by Chapter 15, title 38, U.S. Code. 38 U.S.C.A. § 107(a) (West 2002); 38 C.F.R. §§ 3.40, 3.41 (2012). Therefore, 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 United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). A review of the relevant evidence of record shows that the Veteran only had service in the recognized guerillas and Philippine Army. The law specifically excludes those types of service for purposes of entitlement to nonservice-connected pension benefits. Cacalda v. Brown, 9 Vet. App. 261 (1996). Consequently, the Board finds that there is no legal basis on which the appellant's claim may be granted. The appellant has not submitted any information contrary to that provided to and used by the service department in its verification of his service. In addition, the Board notes that the official documents do not indicate, and the appellant has not contended, that he had any other service that would render him eligible for nonservice-connected pension benefits. Sarmiento v. Brown, 7 Vet. App. 80 (1994); 38 C.F.R. § 3.8(a)(2012). In this case, the law is dispositive, and basic eligibility for nonservice-connected pension benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for a head wound is denied. Entitlement to a right thumb wound is denied. Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs