Citation Nr: 1319973	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  10-41 544	)	DATE
	)
	)

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


THE ISSUE

Entitlement to status as a veteran for the purposes of legal entitlement to Department of Veterans Affairs benefits.


WITNESSES AT HEARING ON APPEAL

Appellant and Daughter


ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO).

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).


FINDING OF FACT

The National Personnel Records Center (NPRC) certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.


CONCLUSION OF LAW

The service requirements for status as a veteran are not met.  38 U.S.C.A. § 101 (West 2002); 38 C.F.R. §§ 3.1, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002).  VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004).

The appellant contends that his entitled to VA benefits for disabilities sustained during service in World War II.  The appellant's claim has been denied on the basis that the appellant did not qualify as a veteran for VA purposes.

The term 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) (West 2002); 38 C.F.R. § 3.1(d) (2012).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

In a May 2008 claim, the appellant requested compensation benefits based on active service in the Republic of the Philippines from December 5, 1943, to February 20, 1947.  In February 2009, the appellant provided his identifying information and contended that he was eligible for VA benefits as a result of service in B Company, 18th Battalion, 2nd Regiment, BMD (F-23), from May 14, 1945, to January 31, 1946.  In April 2009, the appellant again provided his identifying information and contended that he was eligible for VA benefits as a result of service in an unspecified guerilla unit from December 5, 1943, to February 1, 1946.  The Veteran also submitted documents listing his units as B Company, 1st Battalion, 2nd Regiment, BMD; F Company, 2nd Regiment, BMD; C Company, 1st Battalion, 2nd Regiment, ECLGA; and F Company, 1st Battalion, 2nd Regiment, BMD ECLGA.

The RO has noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO.  The RO requested verification of service by the applicable United States service department using the appellant's full name, place of birth, date of birth, dates of service, and unit designations provided by the appellant in his supporting documents.  In addition to the verification information the RO listed on the forms, the RO also supplied the NPRC with copies of most of the relevant records submitted by the appellant.  In September 2009, November 2011, and May 2012, the NPRC responded that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for VA benefits and, thus, denied his claim.

During the course of his appeal, the appellant has submitted additional documentation contesting the RO's decision and attesting to his service in the recognized guerillas.  However, none of that submitted documentation and lay evidence qualifies as acceptable proof of service.  38 C.F.R. § 3.203 (2012).  That evidence was not issued by the service department or other authorizes sources, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA.

NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).

The Board concludes that the appellant does not meet the requisite legal requirements for obtaining VA benefits.  Therefore, his claim for benefits must be denied.

In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).


ORDER

Status as a Veteran for the purpose of legal entitlement to VA benefits is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs