Citation Nr: 1340327	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  10-29 440	)	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.


ATTORNEY FOR THE BOARD

K. Marenna, Counsel


INTRODUCTION

The appellant had active service as a Recognized Guerilla from November 1942 to September 1945.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision set forth in a letter dated in January 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In an October 2010 statement, the appellant requested assistance on the medical/hospitalization of his pulmonary disease.  In a September 2009 statement, the appellant had also requested disability/sickness benefits.  He stated that he had been hospitalized for pulmonary disease.  A review of the claims file reflects that the a September 1999 rating decision denied a claim for entitlement to service connection for pulmonary tuberculosis.  

The issue of entitlement to service connection for a pulmonary disability, to include whether new and material evidence has been received to reopen a claim for entitlement to service connection for pulmonary tuberculosis, has been raised been the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  

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

It is certified that the appellant's only recognized service was as a Recognized Guerilla in the Regular Philippine Army.


CONCLUSION OF LAW

The appellant's service is not qualifying service for VA nonservice-connected pension benefits.  38 U.S.C.A. §§ 101, 107, 1521 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.40, 3.41, 3.203 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Notice and Assistance

The Veterans Claims Assistance Act of 2000 (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.  The Board notes that the appellant submitted a VA Form 21-4142 requesting medical records in December 2009.  However, the appellant's current medical records are not relevant to his claim for nonservice-connected pension benefits.  Thus, there is no prejudice to the appellant in proceeding to adjudicate the appeal.

II. Analysis

The appellant is requesting nonservice-connected disability pension benefits on the grounds that he had World War II service as an active component of the U.S. Armed Forces in the Philippines.

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 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.  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).

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 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, 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 an Affidavit for Philippine Army Personnel which reflects that the appellant had service in the United States Army Forces in the Far East (USAFFE) from August to September 1945 and recognized guerrilla service from November 1942 to August 1945.  A record from the Republic of the Philippines Department of National Defense General Headquarters, Armed Forces of the Philippines certifies that the appellant had Recognized Guerilla service from November 1942 to September 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 appellant's service as a Recognized Guerilla 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).


ORDER

Basic eligibility for VA nonservice-connected pension benefits has not been established and, therefore, entitlement to nonservice-connected pension is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs