Citation Nr: 1328688	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  12-30 200	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to nonservice-connected disability pension benefits.

2.  Entitlement to special monthly pension.


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

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).

The claimant had certified service in the Regular Philippine Army, including recognized guerilla service, from January 2, 1942, to April 8, 1942; and from August 28, 1942, to April 17, 1946.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 decision by the VA Regional Office (RO) in Manila, Republic of the Philippines.


FINDING OF FACT

It is certified that the claimant's only recognized service (including guerrilla service) was in the Regular Philippine Army. 


CONCLUSION OF LAW

The claimant's service is not qualifying service for VA nonservice-connected pension benefits.  38 U.S.C.A. §§ 101, 107, 1521 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.1, 3.2, 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 VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the nature and dates of the claimant's service are not disputed, the law is dispositive, and the provisions of the VCAA do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

Merits

The claimant is requesting nonservice-connected disability pension benefits, including special monthly pension, on the grounds that he had World War II service in an active component of the U.S. Armed Forces in the Philippines from 1942 to 1946.

Under 38 U.S.C.A. § 1521, pension is payable to a Veteran who meets service requirements and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of willful misconduct.  38 U.S.C.A. § 1521(a).  A special monthly pension is payable to a Veteran by reason of need for aid and attendance or by reason of being housebound.  38 C.F.R. § 3.351(a)(1).  

A claimant for VA pension benefits meets the necessary service requirements if there is sufficient evidence that he served in active military, naval, or air service under one of the following conditions: (i) for 90 days or more during a period of war; (ii) during a period of war, if he was discharged or released from such service for a disability adjudged service-connected without the presumptive provisions of law, or at the time of discharge, he had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (iii) for a period of 90 consecutive days or more, if such period began or ended during a period of war; or (iv) for an aggregate of 90 days or more in two or more separate periods of service, during more than one period of war.  38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(2).

The term "period of war" is defined by statute to include the World War II era beginning on December 7, 1941, through December 31, 1946, inclusive.  38 U.S.C.A. § 101(8), (11); 38 C.F.R. § 3.2.

Individuals and groups considered to have performed active military, naval, or air service include Philippine Scouts and others.  38 C.F.R. § 3.7(p).  

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.  38 U.S.C.A. § 107.  

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).  

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and, (3) in the opinion of the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a); see also 38 C.F.R. § 3.41.  

When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

The record includes a United States service department verification of service, which certifies that the claimant had service, including recognized guerrilla service, in the Regular Philippine Army from January 2, 1942, to April 8, 1942; and from August 28, 1942, to April 17, 1946.  Service department certifications of service are binding on VA.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  

Under the controlling law and regulations outlined above, the claimant's service as a guerilla or member of the Regular Philippine Army, while qualifying for VA compensation benefits, is not qualifying service for the pension benefits sought.  In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board notes that, while not certified by the service department, the claimant also avers that he served as a "T/Sgt" in the Signal Corp of the Regular Philippine Army from June 30, 1946, until June 30, 1949.  However, any service after December 31, 1946, would not have been during a period of war (see 38 C.F.R. § 3.2)), and so would not meet the provisions of 38 C.F.R. § 3.3(a)(2).  Moreover, according to the claimant, he was a member of the Philippine Army throughout this time; and this, again, is not qualifying service for VA pension benefits.  See 38 C.F.R. § 3.40(c).  The Board accordingly finds that remand for certification of this period of service is not warranted.  Sabonis, 6 Vet. App. 426; see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (providing, in essence, that remand is not warranted in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant).  






(CONTINUED ON NEXT PAGE)
ORDER

The claimant is not legally entitled to nonservice-connected pension benefits, and the appeal is denied.

The claimant is not legally entitled to special monthly pension benefits, and the appeal is denied.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs