Citation Nr: 1336917 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 12-08 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that a prior March 10, 2011 letter sent to the appellant granting pension benefits was in error. In February 2013, the appellant was afforded a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2013, the appeal was remanded so that the appellant could have a videoconference hearing with his current representative. A videoconference hearing was scheduled to be held in October 2013; however, the appellant failed to appear. Accordingly, his hearing request is considered withdrawn. 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). FINDINGS OF FACT 1. The appellant's recognized guerrilla service from January 1945 to March 1945 is not qualifying military service for the purposes of entitlement to nonservice-connected pension benefits. 2. The appellant's service with the New Philippine Scouts from May 1946 to March 1949 is not qualifying military service for the purposes of entitlement to nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for entitlement to nonservice-connected disability pension benefits are not met. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.7, 3.40, 3.41, 3.203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law authorizes the payment of a pension to a veteran of wartime who has the requisite service and who is permanently and totally disabled from one or more nonservice-connected disabilities not due to the veteran's own willful misconduct. 38 U.S.C.A. §§ 1502, 1521. The term "Veteran" means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). The term "Veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). A Philippine Veteran is limited by law to the award of a narrowly defined set of benefits. Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation, and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(a), (b). Service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States, also referred to as United States Armed Forces in the Far East (USAFFE) and includes recognized guerilla service, is qualifying service for compensation, dependency and indemnity compensation, and burial allowance. However, it is not qualifying service for VA pension benefits. 38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.40, 3.41. Recognized guerrilla service and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945 to June 30, 1947 are also not included for pension benefits. See 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.7(p), 3.40(b) and (d), 3.203. Only service department records can establish if and when a claimant has qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). An unsuccessful claimant who believes there is reason to dispute the report of the service department or the contents of military records can pursue such disagreement with the service department. Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The appellant asserts that his service as a member of the Philippine Scouts from May 1946 to March 1949 should entitle him to pension benefits because there is only a 7-month difference between his enlistment date and October 6, 1945. The service department has verified the appellant's service as a member of the New Philippine Scouts from May 1946 to March 1949. Notwithstanding the appellant's argument, pension benefits are not available for service in the Philippine Scouts for those members that were inducted between October 6, 1945, and June 30, 1947, inclusive. 38 U.S.C.A. §§ 107(b); 38 C.F.R. §§ 3.40. Therefore, as a matter of law, he is not entitled to VA pension benefits. The appellant also asserts that he had recognized guerrilla service prior to May 1946. He submitted several documents in support of his claim including, a September 1944 Philippine Army Discharge Certificate; a January 2000 Certification from the Office of the Adjutant General; an April 1946 Affidavit for Philippine Army Personnel; a March 1949 General Discharge Certificate; a Separation Qualification Record; a September 1991 US Certificate of Military Service; and a written statement dated in November 2011. In January 2012, VA received certification from the National Personnel Records Center showing the appellant had recognized guerilla service from January 1945 to March 1945. The service department's finding is determinative. As noted above, pension benefits are not available for any recognized guerrilla service. Therefore, the appellant is not entitled to pension benefits based on his recognized guerrilla service from January 1945 to March 1945, and he would not be entitled to pension benefits for any alleged guerrilla service prior to May 1946. 38 U.S.C.A. §§ 107, 1521; 38 C.F.R. §§ 3.7, 3.40, 3.41, 3.203. As the appellant lacks the required military service, he is not eligible for nonservice-connected pension benefits pursuant to Title 38, Chapter 15 of the United State Code. In cases such as these, where the law is dispositive, the claim must be denied because of the lack of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). ORDER Entitlement to nonservice-connected pension benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs