Citation Nr: 1330436 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-14 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to Department of Veterans Affairs (VA) nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The appellant had recognized active service from July 1946 to April 1949 with the Special or New Philippine Scouts. This matter is before the Board of Veterans' Appeals (Board) on appeal from an administrative determination issued in September 2010 by the Manila, Republic of the Philippines, VA Regional Office (RO) that determined that VA had made an administrative error in 1998 when it granted the appellant a nonservice-connected pension. The Veteran has appealed. Subsequently, this matter was transferred to the RO in Los Angeles, California, for purposes of affording the Veteran a Board hearing in July 2013. Jurisdiction continues to reside with the Manila RO. 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). FINDING OF FACT The service department has certified that the appellant had no service that would be eligible for a VA nonservice-connected disability pension. CONCLUSION OF LAW The appellant is not eligible for a VA nonservice-connected disability pension. 38 U.S.C.A. §§ 101(2), 101(24), 107, 1521 (West 2002); 38 C.F.R. §§ 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), does not apply in the instant case. The only issue before the Board is the appellant's verified active duty dates. Because qualifying service and how it may be established are outlined in statute and regulation and because service department certifications of service are binding (and dispositive unless there is evidence suggesting that a request for recertification of service is necessary), the Board's review is limited to interpreting the pertinent law and regulations. See Soria v. Brown, 118 F.3d 747, 749 (finding there was no error where service department certification was required, and VA treated the service department's decision on such matter as conclusive and binding on VA). The United States Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Nevertheless, the Board notes that the RO notified the appellant of how he could support this claim in September 2010 correspondence. This document discussed the legal criteria applicable to the claim, the evidence considered, and the reason for the decision. In essence, the appellant has received complete notice. Because it is not shown that the appellant had recognized active service other than from July 1946 to April 1949 with the New Philippine Scouts, and as he has not presented any additional information suggesting that a request for recertification of service is necessary, VA's duty to assist is met. See 38 C.F.R. § 3.159(d)(1). Nonservice-connected Pension Pension is a benefit payable by VA to appellants of a period of war who meet the service requirements prescribed in 38 U.S.C.A. § 1521(j) because of a disability, or to survivors of such appellants. 38 U.S.C.A. § 1541(a); 38 C.F.R. § 3.3(b)(4). An appellant meets the necessary service requirements if he or she served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) 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). Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as an appellant of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "appellant" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6 (a)-(b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Additionally, service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Service of persons enlisted under section 14 of Public Law No. 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 No. 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, U.S. 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), and (d). Where a claim is based upon Philippine service, active service will be the period certified by the service department. 38 C.F.R. § 3.41(a). When there is a question as to whether qualifying service is verified or adequately documented, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). As noted above, the Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993). In this case, records in the claims file show that the appellant had honorable service with the Special Philippine Scouts from July 1946 to April 1949. He was granted entitlement to a VA nonservice-connected disability pension in a May 1998 rating decision by the Newark RO. The RO noted that the appellant did not meet the schedular requirements, but approved an extra-schedular permanent and total disability rating because the appellant was 73 years old, had only a sixth grade education, and was unemployed. That decision did not address the appellant's Veteran's status and basic eligibility for a nonservice-connected pension. After the appellant filed his application for entitlement to the Filipino Veterans Equity Compensation (FVEC) fund in March 2009, his claims file was permanently transferred to the Manila RO. While his claim for the FVEC fund was approved in October 2009, review of his records at the Manila RO indicated that he had been erroneously paid a nonservice-connected disability pension. The September 2010 administrative determination by the Manila RO stated that the appellant was in no way involved in the erroneous payments, which were discontinued in October 2010. The service department has verified that the appellant had creditable valid service with the New Philippine Scouts from July 1946 to April 1949. However, persons with service in the Philippine Commonwealth Army, USAFFE, including the recognized guerrillas, or service with the New Philippine Scouts shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA nonservice-connected disability pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. Therefore, the Board finds that the appellant is not eligible for the requested benefit as a matter of law. While the Board is sympathetic to the appellant's position in this case, the governing regulations on basic eligibility to receive nonservice-connected pension benefits are binding. See 38 U.S.C.A. § 7104(c). Accordingly, the preliminary requirement of qualifying Philippine service under applicable regulations to warrant entitlement to a pension has not been met. Where, as here, the law and not the evidence is dispositive, the claim should be denied because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON THE FOLLOWING PAGE) ORDER Entitlement to a nonservice-connected disability pension is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs