Citation Nr: 1318919	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  10-27 726	)	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. 


REPRESENTATION

Appellant represented by:	 [redacted]


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel



INTRODUCTION

The appellant claims he had service in the Philippine National Volunteer Army from April 1942 to May 1945.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO), which determined that the appellant does not have basic eligibility for legal entitlement to nonservice-connected disability pension benefits.  

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).


FINDING OF FACT

The appellant's service does not qualify him for nonservice-connected disability pension benefits.  


CONCLUSION OF LAW

The legal criteria for basic eligibility for nonservice-connected disability pension benefits have not been met.  38 U.S.C.A. §§ 101, 101, 107, 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  This is so, because, as discussed below, the facts regarding entitlement to nonservice-connected pension benefits are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA pension benefits.  The aforementioned notice and development requirements are therefore inapplicable and need not be considered with regard to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 05-04, 69 Fed. Reg. 59989 (2004).

The appellant asserts that he is entitlement to nonservice-connected disability pension benefits based on his "volunteer" or guerrilla service with the United States Armed Forces.  To establish basic eligibility for VA nonservice-connected pension benefits, in part, the veteran must have had active military, naval, or air service.  38 U.S.C.A. §§ 101(2), (24), 1521(j); 38 C.F.R. §§ 3.1, 3.6.  The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d)."  Active military, naval, and air service" includes active duty.  38 C.F.R. § 3.6(a).  In turn, "active duty" is defined as including full-time duty in the Armed Forces.  38 C.F.R. § 3.6(b).  The "Armed Forces" consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1. 

Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40 (2012).  Service as a guerrilla under prescribed circumstances is qualifying service for VA compensation and dependency and indemnity compensation benefits, but not for VA pension benefits.  38 C.F.R. § 3.40(c).  A service department determination as to an individual's service shall be binding on VA.  Dacoron v. Brown, 4 Vet. App. 115, 120 (1993); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In April 2010 and April 2012, the Philippine Commonwealth Army of the United States Armed Forces Far East (USAFFE) confirmed that the appellant did not have service as a member of the Philippine Commonwealth Army, including recognized guerrilla service in the service of the United States Armed Forces.  However, even if USAFFE determined that that appellant had recognized guerrilla service, individuals with such service are not deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA nonservice-connected pension benefits. 

In addition, the official documents, to include the aforementioned service department findings, 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.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994); see also 38 C.F.R. § 3.8(a) (2012).  

Accordingly, the Board finds that the appellant is not eligible for the requested benefit, as the law is dispositive.  Therefore, eligibility for nonservice-connected disability pension benefits must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER  

Nonservice-connected disability pension benefits are denied.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs