Citation Nr: 1330033 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-28 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral sensorineural hearing loss, claimed as deafness. 3. Entitlement to service connection for brain damage. 4. Entitlement to service connection for a condition manifested by stomach ache. 5. Entitlement to service connection for malaria. 6. Entitlement to nonservice-connected disability pension benefits, to include special monthly pension based on permanent need for aid and attendance or being housebound. WITNESSES AT HEARING ON APPEAL The claimant and his spouse 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 May 4, 1945, to September 22, 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions issued in November 2010 by the VA Regional Office (RO) in Manila, Republic of the Philippines. In January 2013, the claimant testified before the undersigned Veterans Law Judge at a Travel Board hearing in Manila, Philippines. A transcript of that hearing is of record. FINDINGS OF FACT 1. The claimant had recognized guerrilla service with the Armed Forces of the United States in the Philippines during World War II and so is eligible for compensation, but not pension, benefits. 2. The record does not contain credible evidence of hypertension during the claimant's recognized World War II service; and the claimant's hypertension, which is not shown by the medical evidence of record for more than 50 years after his discharge from service, is not related to service. 3. The record contains no evidence of hearing loss from May 4, 1945, to September 22, 1945, or within one year after the claimant's September 22, 1945, discharge; and the preponderance of the evidence indicates that his present hearing loss is not related to service but is instead age related. 4. The claimant was not diagnosed with or treated for brain damage, a stomach disorder, or malaria during his recognized World War II service; and there is no post-service record of any diagnosis of or treatment for brain damage, a stomach disorder, or malaria. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. A bilateral hearing loss disability was not incurred in or aggravated by service; and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 3. Brain damage is not shown by the evidence of record. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 4. A diagnosed stomach disorder is not shown by the evidence of record. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 5. Malaria is not shown by the evidence of record. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 6. 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. 2012); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements were accomplished in a letter dated in September 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The claimant was apprised of the information and evidence needed to substantiate his claims of service connection (including the information and evidence to be submitted by him and the information and evidence to be obtained by VA); of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations. He was also apprised of the eligibility requirements for nonservice-connected pension benefits. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the claimant's military records and his medical records. The claimant was also accorded a VA audiology examination in October 2010, during which the examiner reviewed the claims file, discussed the claimant's history and symptoms with the claimant, and conducted requisite testing; and the report of this examination is sufficiently detailed as to permit fair and equitable consideration of the merits of the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA audiology evidence is adequate. In addition to the foregoing, in January 2013 the claimant testified before the undersigned Veterans Law Judge. During that hearing the Veterans Law Judge explained the issues and asked the claimant questions to ascertain the nature of any in-service events and symptoms. The Veterans Law Judge also asked questions to draw out the current nature of the claimant's complaints, and the hearing focused on the elements necessary to substantiate his claims. The claimant has not suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the claimant and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). The Board accordingly finds that VA has fulfilled its duty to assist. The Board notes that a VA Compensation and Pension examination was not done on the issues of service connection for hypertension, brain damage, stomach complaints, and malaria. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of a disability; (2) establishes that the veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is no contemporaneously written record of hypertension, brain damage, stomach complaints, or malaria during the claimant's certified service from May 4, 1945, to September 22, 1945; no evidence of any of the claimed disorders until more than 50 years after this certified service; and no competent evidence which suggests that any of these claimed disorders is related to the claimant's certified service. Remand for a VA examination is therefore not needed. In short, the claimant was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the claimant; and does not prohibit consideration of this matter on the merits. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence 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 veteran). II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). 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). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension and other organic disease of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the claimant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Hypertension During his 2013 Board hearing the claimant testified that he got hypertension from the mountains during his service as a guerrilla. He added that doctors were not available so he basically just self-medicated for hypertension. After review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The record contains no contemporaneously written evidence of hypertension during the claimant's certified service from May 4, 1945, to September 22, 1945, or within a year of separation from service. In fact, the earliest indication of hypertension stems from the claimant's September 2010 claim for service connection, in which he stated that his hypertension began in 1996, and that he was first treated for hypertension in March 1999. See also claimant's September 2010 Authorization for Records (VA Form 21-4142). This, by the claimant's own report, is more than 50 years after his certified service, and it is a factor against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Moreover, according to the claimant's medical providers, the claimant was not diagnosed with or treated for hypertension until 2010; some 65 years after the claimant's certified service. Id. This too is highly probative evidence against the claim. As regards the claimant's contention that he self medicated his high blood pressure during his certified service, the claimant did not expound upon this contentions. Conversely, the evidence shows that he was not diagnosed with hypertension until 50 years after service; and according to a 2010 statement from a treatment provider, the claimant was not on any antihypertensive medication. Based on the evidence of record the Board does not find the claimant's assertions of onset during his certified service to be credible and it is accorded no weight. See Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). There is also no competent evidence which suggests that the post service diagnosis of hypertension is related to the claimant's certified service. To the extent that the claimant himself suggests that his hypertension may be related to his certified service, a complex disease of the circulatory system such as high blood pressure/hypertension is not a simple medical condition capable of lay observation or diagnosis, so any inference, that is, opinion, as to causation cannot be competent lay evidence. And it is not argued or shown that the claimant, as a lay person, is qualified through specialized education, training, or experience to diagnosis hypertension, or offer an opinion as to whether it is related to service. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board consequently finds that the claimant's opinion is not competent and it is in turn of no probative value. Jandreau. Accordingly, the Board finds that the weight of the evidence is clearly against the claim. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Service connection for hypertension pursuant to 38 C.F.R. § 3.303(a) or (d) is therefore not warranted and the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Hearing loss The claimant also seeks service connection for hearing loss, which he suggests is related to "the loud firing of the guns" when he was in the mountains. Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes. Whether the veteran meets the criteria for service connection for a hearing disability loss is based on mechanical application of results of audiometric examination to the definition provided by the law. The veteran's lay statements regarding hearing acuity are credible evidence that the veteran perceives a subjective hearing loss, but the veteran's lay statements are not competent evidence which establishes that the veteran's hearing acuity meets the definition of hearing loss disability set by law. See, e.g, Lendenman v. Principi, 3 Vet. App. 345 (1992). On review of all of the evidence of record, the Board finds that the preponderance of the evidence is against this claim. The record contains no contemporaneously written evidence of hearing loss during the claimant's certified service from May 4, 1945, to September 22, 1945. In fact, the earliest indication of hearing loss stems from the claimant's September 2010 claim for service connection, in which he stated that his hearing loss began in 1996; more than 50 years after his certified service. This is evidence against the claim. See Maxson, 230 F.3d 1330 (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Although a diagnosis of bilateral sensorineural hearing loss was confirmed on VA examination in October 2010, the examiner, who noted the claimant's wife's report that the claimant's hearing had deteriorated in the past 15 to 20 years, concluded that the claimant's hearing loss was not caused by or a result of the claimant's noise exposure during his certified service, but was instead due to aging/presbycusis. The Board finds this opinion, which is based on careful review of the medical evidence of record and consideration of the claimant's subjective complaints and the results of audiology testing; and which included a detailed rationale for the examiner's opinion and is uncontroverted by any other medical evidence of record; to be highly probative evidence against the claimant's claim. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); Owens, 7 Vet. App. 429 (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). In so finding, the Board recognizes that the claimant is competent to describe events that occurred during his certified service, and competent to state that he has hearing loss (see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation); however, hearing loss can have many causes, and determining the existence and etiology of hearing loss requires medical testing and expertise. See Jandreau, 492 F.3d 1372, 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Lendenman, 3 Vet. App. 345 (noting that the veteran's lay statements regarding hearing acuity are credible evidence that the veteran perceives a subjective hearing loss but are not competent evidence which establishes that the veteran's hearing acuity meets the definition of hearing loss disability set by law). To the extent that the claimant's statements are offered as a lay opinion on causation, that is, an association between his current hearing loss and service, a lay opinion is limited to inferences which are rationally based on a claimant's perception and does not require specialized knowledge; and no factual foundation has been established to show that the claimant is qualified through knowledge, education, training, or experience to offer a medical diagnosis or opinion. The Board therefore finds that the claimant's opinion as to an association between his hearing loss and service is beyond the claimant's lay capacity and his statements are not competent medical evidence on the question of causation and are of no probative weight. Owens, 7 Vet. App. 429. Where, as here, the determinative question involves a nexus or causation, and a lay assertion on medical causation is not competent evidence, competent medical evidence is required to substantiate the claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. As stated before, the record does not contain competent medical evidence which suggests that the claimant's hearing loss is related to service; rather, the competent medical evidence flatly refutes this notion. Additionally, while the claimant was undoubtedly exposed to loud noises as a guerilla during his certified service, there is, again, no contemporaneous record of hearing loss during service or within the year after his certified service, so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 is not warranted. In short, although the claimant had loud noise exposure during his certified service, there is no allegation or evidence of hearing loss until some 50 years after his certified service, and the Board finds this to be highly probative evidence against his claim of service connection. Owens, 7 Vet. App. 429 (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Moreover, competent medical evidence, which is uncontradicted by any other competent evidence, instructs that the claimant's hearing loss is not related to service, and this too is highly probative evidence against the claim. Id. The weight of the evidence is consequently against the claim. As the weight of the evidence is decidedly against the claim, service connection for bilateral hearing loss must be denied, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§3.303, 3.309; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.). C. Brain damage, stomach ache, and malaria In addition to the foregoing, the claimant seeks service connection for brain damage, upset stomach, and malaria. In his September 2010 claim for service connection he said his brain damage begin in 1996. In October 2010 he reported that he began to suffer from "minor headache pains" after the war, particularly after the year 2008; and that he lost consciousness and fell on two different occasions -- once in 2009, and again in the year 2010. During his 2013 Board hearing he testified that he had chills and stomach ache while he was in the mountains during the war, but admitted that he has never been diagnosed with or treated for malaria or stomach complaints. On review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the claims. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110. The Veteran was not diagnosed with or treated for brain damage during his certified service from May 4, 1945, to September 22, 1945; and the medical evidence of record does not relate a post service diagnosis of brain damage. Although the claimant apparently did sustain a superficial head wound some 65 years after his certified service due to a fall after loss of consciousness in 2010, he does not have a current diagnosis of brain damage; and, most significantly, there is no allegation or evidence of brain damage during the claimant's certified service. To the extent that the claimant himself suggests that his headaches and syncope are indicative of brain damage, brain damage is not a simple medical condition capable of lay observation or diagnosis. And it is not argued or shown that the claimant, as a lay person, is qualified through specialized education, training, or experience to diagnose brain damage, or offer an opinion as to whether it is related to service. See, e.g., Woehlaert, 21 Vet. App. 456 (providing that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board consequently finds that the claimant's contention is not competent and it is in turn of no probative value. Jandreau. The claimant also was not diagnosed with or treated for a stomach disorder or malaria during his certified service from May 4, 1945, to September 22, 1945; and there is no post-service medical evidence of any diagnosis of or treatment for stomach ache or malaria. In this regard the Board notes that while the claimant is competent to state that he has chills and stomach ache, a diagnosis of malaria is medical in nature; that is, not capable of lay observation. And, again, it is not argued or shown that he is qualified through specialized education, training, or experience to make a diagnosis. Thus, to the extent the claimant's statements are offered as proof of a diagnosed disability, his statements are not to be considered as competent evidence favorable to claim. Id. In the absence of proof of a present disability, service connection for brain damage, stomach disorder, and malaria must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that a service connection claim requires evidence of a current disability). III. Nonservice-connected pension benefits In addition to the foregoing, the claimant is requesting nonservice-connected disability pension benefits, including special monthly pension, on the grounds that he had recognized guerilla service in an active component of the U.S. Armed Forces in the Philippines during World War II. 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. 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 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 May 4, 1945, to September 22, 1945. 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for brain damage is denied. Entitlement to service connection for to a condition manifested by stomach ache is denied. Entitlement to service connection for malaria is denied. The claimant is not legally entitled to nonservice-connected pension benefits (including special monthly pension benefits); the appeal is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs