Citation Nr: 18153494
Decision Date: 11/28/18	Archive Date: 11/27/18

DOCKET NO. 17-10 125
DATE:	November 28, 2018
ORDER
Legal entitlement to Department of Veterans Affairs (VA) benefits is denied.
FINDING OF FACT
The National Personnel Records Center (NPRC), through its delegated authority from the Department of the Army, has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.
CONCLUSION OF LAW
The criteria for VA death benefits have not been met. 38 U.S.C. § 101(2), (10). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant seeks to establish his entitlement to recognition as a Veteran for the purpose of establishing entitlement to VA benefits. He asserts that from April 1942 to November 1945 he served in a guerrilla unit attached to the 121st Infantry of the United States Armed Forces.
Legal entitlement to VA benefits
In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, see 38 C.F.R. § 3.203(c), the service department’s decision on such matters is conclusive and binding on the VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria,118 F.3d at 749.
In Tagupa v. McDonald, 27 Vet. App. 95 (2014), the Court of Appeals for Veterans Claims found that verification of service directly from the Department of the Army was required, in the absence of evidence of delegation to NPRC as an agency of National Archives and Records Administration (NARA), of the service department’s authority to verify the nature of the appellant’s service. In January 2016, the Department of the Army and NARA entered into a Memorandum of Understanding whereby the Department of the Army transferred to NARA the responsibility to provide reference services for the Philippine Army files. Therefore, this Memorandum of Understanding has resulted in a verification from NPRC/NARA being a verification from the Department of the Army.
NPRC considered the information contained in the documentation submitted by the appellant purporting to show the required service, but certified in August 2010 that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The appellant has not submitted any evidence of military service since the NPRC’s certification in August 2010.
The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The NPRC has certified that he had no qualifying service. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As such, the basic eligibility criteria for establishing entitlement to VA benefits have not been met, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where law and not evidence is dispositive, a claim should be denied or an appeal terminated because of lack of legal merit or lack of entitlement under the law).
 
JENNIFER HWA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Parke