Citation Nr: 1320433 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-15 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to non-service connected pension benefits. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant served with the Philippine Scouts from July 1946 to April 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and May 2011 administrative decision of the VA Regional Office (RO) in Manila, Philippines, which denied the claim on appeal. Please note 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 enlisted in the Philippine Scouts in July 1946 under the provisions of section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945). 2. The appellant's service does not confer eligibility to the appellant for VA nonservice-connected pension benefits. CONCLUSION OF LAW 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 CONCLUSION I. Duties to Notify and Assist As set forth in more detail below, the service personnel records show that the appellant enlisted in July 1946 and served as a member of the Philippine Scouts. The VCAA need not be considered because the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). II. Analysis The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). Service of persons enlisted under § 14 of Public Law 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law 190, as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190. 38 C.F.R. § 3.40(b). Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits. 38 C.F.R. §§ 3.40(b), (c), (d). 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 enlisted in July 1946 under the provisions of section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), and only had service in the Philippine Scouts. The law specifically excludes that type of service for purposes of entitlement to non-service 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 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs