Citation Nr: 1333382	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  12-03 955	)	DATE
	)
	)

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



THE ISSUE

Whether the appellant has legal entitlement to VA nonservice-connected pension benefits.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

R. Erdheim, Counsel



INTRODUCTION

The appellant had a confirmed period of duty from November 1942 to December 1944.

This appeal arises before the Board of Veterans' Appeals (Board) from an April 2011 decision of a VA Regional Office (RO) in Manila, the Republic of the Philippines.  In January 2013, the Board remanded this case for the RO to issue a statement of the case (SOC) pertaining to the current issue on appeal.  Such SOC was issued in January 2013, and the appellant perfected his appeal of this issue by filing a VA Form 9 in February 2013.

Also in January 2013, the Board denied legal entitlement to VA disability compensation benefits.  Because a final Board decision was rendered with regard to this issue, it is no longer a part of the current appeal.

The Board notes that it has reviewed both the appellant's physical claims file and Virtual VA to ensure that the complete record is considered.

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 appellant's service does not qualify him for nonservice-connected pension benefits.


CONCLUSION OF LAW

The legal criteria for basic eligibility for VA nonservice-connected pension benefits are not met.  38 U.S.C.A. §§ 101, 107 (West 2002 and West Supp. 2012);  38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.

Legal Criteria and Analysis

Philippine eligibility for nonservice-connected disability pension is covered by 38 C.F.R. § 3.40(a) as follows: 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.

Persons who served in the Commonwealth Army of the Philippines, by contrast, are not entitled to nonservice-connected disability pension as governed by 38 C.F.R. § 3.40(c): Service is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were 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 Military Order of the President of the United States dated July 26, 1941.

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial 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 if the evidence meets 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 VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows the following: (1) service of four months or more; (2) discharge for disability incurred in the line of duty; or (3) ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b).  When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).

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); see also Venturella v. Gober, 10 Vet. App. 340 (1997).

Here, the evidence shows that the appellant had recognized guerilla service from November 1942 to December 1944.  The service department certified such service in January 2010.  The appellant has also submitted evidence of recognized guerilla service and has rendered statements in support of such.  The law, however, specifically excludes such service mentioned above for purposes of entitlement to nonservice-connected pension benefits.  Cacalda v. Brown, 9 Vet. App. 261 (1996).  As such, the Board finds that the appellant is not eligible for nonservice-connected disability pension benefits.

The appellant has not submitted any information contrary to that provided to and used by the service department in its verification of his service.  In addition, the Board notes that the official documents do not indicate, and the appellant has not contended, that he had any other service that would render him eligible for nonservice-connected pension benefits.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994); see also 38 C.F.R. § 3.8(a).  In this case, the law is dispositive, and basic eligibility for nonservice-connected pension benefits must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Legal entitlement to VA nonservice-connected pension benefits is denied.




____________________________________________
L. B. YANTZ
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs