Citation Nr: 1327552	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  12-31 076	)	DATE
	)
	)

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


THE ISSUE

Entitlement to VA pension benefits.


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran had recognized guerrilla service from January to June 1945.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in October 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied entitlement to VA pension benefits.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran had service as part of the recognized guerrillas in the Commonwealth Army of the Philippines prior to July 1946. 


CONCLUSION OF LAW

The legal criteria for basic eligibility for VA pension benefits are not met.  38 U.S.C.A. §§ 101, 107, 1513, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The VCAA is not applicable to matters in which the law, and not the evidence, is dispositive.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (case involved application of 38 U.S.C.A. § 101(3). 

In this case the law is dispositive, rather than the facts.  As will be discussed below, this case is governed by statutes and regulations limiting the types of service for which specific benefits may be paid.  There is no dispute as to the type and nature of the Veteran's service.

Factual Background

The Veteran filed a claim for pension benefits in September 2011.  He reported service as part of the recognized guerrillas from September 1942 to June 1945.  An affidavit of Philippine Army Personnel complete by the Veteran in April 1947, shows he reported service with one unit from September 1942 to January 1945 and with another from January to June 1945.  He reported that he was compensated only for the service from January to June 1945.  The service department has certified only the recognized guerilla service from January to June 1945.  

Legal Standard for Pension Benefits

Non-service connected disability pension is available to a Veteran who served for 90 days or more during a period of war, who is permanently and totally disabled due to non-service connected disabilities which are not the result of his own willful misconduct, and who satisfies certain income and net worth requirements.  38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.3(a)(3).  

A Veteran of a period of war who is age 65 or older and who meets the service requirements of 38 U.S.C.A. § 1521 is entitled to received a pension, provided certain income and net worth requirements are satisfied.  38 U.S.C.A. § 1513(a); 38 C.F.R. § 3.3(a)(3). 

A "Veteran" is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 C.F.R. § 3.1(d). 

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 certain benefits as specified by law.  38 U.S.C.A. § 107(a).  Those specified benefits do not include non-service connected disability pension benefits or service pension benefits on the basis of advanced age.  Id.  

In this case, the service department has certified that the Veteran's recognized guerrilla service and that he was discharged from the Philippine Commonwealth Army.  Although the Veteran has reported additional years of service, he has not indicated that this was qualifying service in the armed forces of the United Sates.  He has reported that he was not compensated by the service department, and has not otherwise reported that this was service that would qualify him for pension benefits.  The service department considered the earlier reported service when it certified his guerilla service.

The Veteran's verified service cannot constitute active military, naval, or air service for purposes of establishing entitlement to VA pension benefits.  38 U.S.C.A. §§ 107(a), 1513, 1521(a); 38 C.F.R. §§ 3.1(d), 3.3(a)(3).  He has no basic eligibility for VA pension benefits. 


ORDER

Entitlement to VA pension benefits is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs