Citation Nr: 1331465 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-33 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to nonservice-connected pension benefits. ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran has active service as a Recognized Guerilla from February 1945 to April 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision set forth in a letter dated in November 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes the RO denied claims for nonservice connected pension benefits in letter determinations issued in February 1989 and April 1989. None of the letters, informed the Veteran of his appellate rights nor appear to have included VA Form 4107, which sets forth the procedure by which the Veteran may perfect an appeal to the Board. As the Veteran was never notified of his appellate rights in 1989, see 38 C.F.R. § 19.25, and the RO processed the current application by the Veteran as an original claim for nonservice-connected pension, the Board has also decided this appeal as an original claim for entitlement to nonservice connected pension benefits. 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 National Personnel Records Center (NPRC) has determined that the Veteran had service only in the Philippine Recognized Guerillas and Combination Service. 2. The record is otherwise negative for evidence demonstrating official verification of the Appellant's service as a member of the Philippine Scouts or, in the service of the United States Armed Forces. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. § 3.3, 3.40 (2013). REASONS AND BASES FOR FINDINGS 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. However, where the law and not the evidence is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). In the present claim, the undisputed facts preclude the appellant from eligibility for VA disability pension benefits. The claim for entitlement to nonservice-connected pension benefits must therefore be denied as a matter of law, and thus, VCAA notice is inapplicable to the claim. Nevertheless, the Board will address aspects of VA's duties to notify and assist as pertinent to the issue below. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Board notes that the RO provided notification in July 2011 to the Veteran for his claim for a rating increase for a service connected disability, but did not provide notification to the Veteran regarding his contemporaneous claim for nonservice connected pension benefits. The Board finds that the Veteran has not been prejudiced by this lack of notice as the Veteran was informed by letter in November 2011 that he was ineligible for a nonservice-connected pension benefit based upon his service as a Recognized Guerilla. As will be discussed below, the Veteran submitted documents and affidavits regarding the nature of his service with letters indicating he submitted the evidence to establish that he was entitled to a pension. Further, the Veteran indicated in October 2012 that he had provided VA with all of the substantial and essential evidence in his possession to prove his status as a Veteran his claim for a nonservice-connected pension benefits. This statement demonstrates that the Veteran has submitted all evidence and/or information in his possession and thus the purpose of the VCAA was not frustrated. The Board therefore finds that the Veteran had actual knowledge of the requirement that he establish his status as a Veteran for pension benefit purposes and an adequate opportunity to participate effectively in the processing of the claim. In the circumstances of this case, additional efforts to notify the Veteran at this point would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of 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). VA's errors were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced by proceeding on the merits herein and no further development is required regarding the duty to notify. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained the service personnel records and obtained verification in May 1989 of the Veteran's service as a Recognized Guerilla from February 1945 to April 1946. The Board notes subsequent thereto, the Veteran has submitted various documents including documentation from the Republic of the Philippines recognizing the Veteran's status as a World War II Veteran. In Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit held that, pursuant to both 38 C.F.R. § 3.203(c) and the Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant (including relevant lay affidavits and documentary evidence) in support of a request for verification of service from the service department must be submitted to the service department for review. A new verification has not been accomplished based upon the latest evidence submitted by the Veteran. The Board finds, however, that the Veteran has not been predjudiced by the lack of a second verification. Although much of the documentation provided by the Veteran is new, and is relevant towards substantiating his claim, as discussed below, the identifying information in the documents from the Philippine government is the same information that resulted in the May 1989 verification. The evidence does not suggest, nor does the Veteran argue, that the prior verification was based upon erroneous information or additional information that should be considered in verifying the nature of the Veteran's service. Stated another way, new evidence does not mean new documents with the same information. While the Court in Capellan stated that 38 C.F.R. § 2.303 requires a claimant's military service be determined based upon all relevant evidence, with due application of the duty to assist, Capellan, 539 F.3d at 1382, the Court also repeatedly discussed new evidence requires a second verification request when the documents, affidavits, testimony, etc. contains new identifying information, not duplicative information. The Court in Capellan did not state that VA must submit redundant information for a new verification. Here, all identifying information submitted by the Veteran is duplicative of the information that resulted in the May 1989 certification. The information in the documents submitted by the Veteran would not affect the outcome of the appeal. See Soyini, supra (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). Therefore, the Board finds a second verification request by VA is not required, and a remand to obtain a new verification is not necessary. In this regard, the Veteran has submitted evidence asserting discrepancies in his birth date and middle name utilized to obtain verification of his requisite service. The identified discrepancies, however, are not peritinent to establishing his claim for nonservice-connected pension benefits. As such, the additional information does not affect the probative value of the official service verification obtained in May 1989 as the verification was based upon the Veteran's middle initial used during service, which is consistent with his utilized middle name, and his newly obtained birthdate was not used during military service. In this regard, the Veteran reported that he had not been aware of the new birth date until well after service in World War II which was the subject of the May 1989 verification. Therefore, the Board finds that a second verification is not needed based upon the Veteran's birth date newly acquired after service, and his middle name which is consistent with the middle initial utilized in the May 1989 official verification. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Facts and Analysis Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claim for nonservice-connected pension. In support of his claim, the Veteran submitted a variety of documents purporting to establish that his service qualifies for nonservice-connected VA pension. Specifically, the Veteran submitted: * Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office document dated in June 1988 stating the Veteran was commissioned into Bell's Guerrillas on September 1942; * A United States Processing affidavit that established the Veteran had guerilla service starting with entry into Bell's Guerrillas and then various other units, and reportedly suffered from malaria in June 1945 while serving in Boone's guerrillas; * A May 1995 certification that appears to be from the Philippine government that the Veteran entered the 71st Squadron-Bell's guerrillas and was relieved in April 1946; * An application form for old age pension for Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office document dated in May 1991; * A roster of the Bataan Military District Engineer Combat Battalion, which contains the Veteran's name; * An acknowledgement dated in May 1975 by the Republic of the Philippines, Department of Finance for service from January 1944 to September 1945; * A certification by the General Headquarters of the Armed Forces of the Republic of the Philippines that the Veteran was in service recognized by the Republic of Philippines from September 1942 to April 1946; * A certification by the Philippine Veterans Bank that the Veteran is a shareholder in that institution; and * A May 1999 certification from the Philippine Veterans Affairs Office that his pension had been approved effective in April 1990. The Veteran has also submitted an affidavit indicating that he was recruited and served as a guerilla during World War II. He has also submitted statements to VA reporting his civilian activity during the war while also serving as a guerilla. In May 1989, the National Personnel Records Center (NPRC) NPRC reported that the Veteran had recognized guerrilla service from February 1945 to April 1946 and regular Philippine Army service in April 1946. Clearly, the Veteran in the instant case is not seeking compensation, that is, the Veteran is not asserting that he suffers from a current medical condition that resulted from an injury or disease incurred or aggravated by service. The Board notes the Veteran is currently service-connected for residuals of malaria. Instead, the Veteran seeks pension benefits which VA pays veterans under different eligibility criteria. The issue before the Board is whether the Veteran has proved he had active military, naval, or air service of the type that qualifies him for pension benefits. Here, as noted, the NRPC responded to the RO and verified the Veteran only had service as a Recognized Guerrilla, in the service of the United States Armed Forces. To establish basic eligibility for disability compensation or pension benefits administered by the United States Department of Veterans Affairs, the claimant must be a veteran who had active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131, 1521. A "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released therefore under conditions other than dishonorable. 38 U.S.C.A. § 101(2), 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. 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 recognized guerrilla service, may constitute recognized service in the Armed Forces of the United States for the purpose of establishing eligibility for disability compensation, but not for nonservice- connected pension benefits, administered by the United States Department of Veterans Affairs. 38 C.F.R. §§ 3.40, 3.41. Under 38 C.F.R. § 3.40(a), a Veteran is eligible for nonservice-connected pension for service in the Regular Philippine Scouts, the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. Stated another way, recognized guerrilla service is recognized service for VA service-connected disability compensation, dependency and indemnity compensation, and burial benefits, but not for VA pension benefits, which is sometimes referred to as VA nonservice-connected disability pension benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40. 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 an original Certificate of Discharge, without verification by the service department. VA may accept such evidence if it is issued by the service department and includes the needed information as to length, time and character of service and VA finds that it is genuine and includes accurate information. If the evidence the claimant submits does not meet these requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203. The findings of the service department are binding on VA for the purpose of establishing service in the U. S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (NRPC verification is binding on VA such that VA has no authority to change or amend the finding). VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces. Id. The documentation submitted by the Veteran does not relate to the fact necessary to establish his claim, that is, he was in the Philippine Scouts or a member of branch of the regular United States Armed Forces. These documents, although differing in the relevant dates, all confirm that the Veteran served only as a recognized guerilla. The evidence of record does not include any official documentation showing that the Veteran had any such active military duty service as defined by law or regulation. 38 C.F.R. § 3.107. Further, the evidence of record did not include official documentation, such as a Form DD 214, demonstrating that the Appellant had qualifying service. The Veteran has submitted several documents from the Philippine government. These documents were not generated by a United States service department or NPRC. They fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government. Soria v. Brown, 118 F. 3d 747, 749 (Fed. Cir. 1997). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA, which is bound to follow the certifications by the service departments with jurisdiction over United States military records. Thus, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA nonservice-connected disability pension. As such, the Board finds they do not serve to verify the Veteran served in a regular component of the active military service of the United States Armed Forces or the Philippine scouts during World War II. Service with the Commonwealth Army (USAFFE), including the recognized guerrillas, or the new Philippine Scouts did not meet this requirement. The law under 38 U.S.C.A. § 107(a) and the implementing regulation, 38 C.F.R. § 3.40, specifically excludes service such as the Veteran's for purposes of entitlement to pension benefits. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (per curiam). In other words, the Veteran's service does not qualify him for a VA pension, whether as a member of a certified recognized guerilla service unit, or through unrecognized guerilla service under a recognized commissioned officer. Consequently, the Board finds that there is no legal basis for the Veteran's claim for the pension. As such, the Board finds that the Veteran had no qualifying active service. Therefore, the Board finds that basic eligibility for nonservice-connected pension has not been established. 38 C.F.R. § 3.3(a)(2)(iii). In sum, NPRC has duly considered the Veteran's application for VA benefits, including the pertinent documentation submitted by the Veteran, and has certified that he had no qualifying active service as a member of the United States Armed Forces or the Philippine scouts during World War II. The Board is bound by those certifications. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). The record does not reflect that the Veteran had qualifying service. On that basis, the Veteran does not meet the basic eligibility criteria for establishing entitlement to a nonservice-connected disability pension. The law under 38 U.S.C.A. § 107(a) and the implementing regulation, 38 C.F.R. § 3.40, specifically excludes service such as the Veteran's for purposes of entitlement to nonservice-connected disability pension benefits. Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (per curiam). The Board finds that there is no legal basis for the Veteran's claim for nonservice-connected disability pension. Accordingly, the Veteran's claim for nonservice-connected pension benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Basic eligibility for VA nonservice-connected pension benefits has not been established and, therefore, entitlement to nonservice-connected pension is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs