Citation Nr: 18159406 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-26 885 DATE: December 19, 2018 ORDER Entitlement to non-service-connected disability pension benefits is denied. FINDING OF FACT The National Personnel Records Center (NPRC) 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 United States Armed Forces. CONCLUSION OF LAW The criteria for basic eligibility requirements for nonservice-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6, 3.203. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant’s claim for entitlement to non-service-connected disability pension benefits on the basis that he does not have the required military service with the Armed Forces of the United States to be entitled to VA benefits. Entitlement to non-service-connected disability pension benefits In 2009, the appellant initially sought payment under the American Recovery and Reinvestment Act, which provides a one-time benefit be paid to certain Philippine veterans be paid from the Filipino Veterans Equity Compensation (FVEC) Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009). He was denied that benefit multiple times on the basis that he did not have “veteran” status, the last time in an October 2013 administrative decision. In July 2016, the Veteran filed VA Form 21-526 applying for “old age pension” or, in other words, non-service-connected disability pension benefits. VA non-service-connected disability pension benefits are payable to a veteran who is permanently and totally disabled from non-service-connected disability or disabilities not the result of willful misconduct or is age 65 or older, and who has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) 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. § 1521(j); 38 C.F.R. § 3.3(a)(3). 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 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). Service as a regular Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation and DIC benefits, but not for pension benefits. 38 C.F.R. § 3.40(a) & (b). Service 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, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation, DIC and burial benefits, but not for pension benefits. 38 C.F.R. § 3.40(c). 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 pension. 38 U.S.C. § 107; 38 C.F.R. § 3.40(c) and (d). Active service will be the period certified by the service department. 38 C.F.R. § 3.41. In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department’s decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203 (c); see also Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant’s only recourse lies within the relevant service department, not with VA. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203; Soria, supra. In Tagupa v. McDonald, 27 Vet. App. 95 (2014), the Court held that the plain meaning of 38 CFR 3.203 (c) requires verification of service from the relevant service department, which would be the Department of the Army, as opposed to the National Personnel Records Center. Thereafter, in January 2016, the Department of the Army and the National Archives and Records Administration (NARA) signed a Memorandum of Agreement that gave responsibility of verifying military service to the NPRC. The appellant has submitted inconsistent statements and documents as to when he served. With his initial claim for the FVEC benefit in 2009, he reported he had recognized guerilla service from December 1941 to July 1946 with the 2nd Battalion, 11th Infantry, 33rd Division. He also submitted a letter from Republic of the Philippines, Department of National Defense, Military Service Board dated in November 1999 that lists a number of people, including the appellant, and states that, after an investigation, the Board has confirmed that the people listed had military service in the Philippines (but does not list what kind type of service) during the period of December 8, 1941 to July 3, 1946. Notably, these are the dates that the appellant is reporting as his dates of service. However, some of the documents he submitted are inconsistent with his reported service. An application for old age pension dated in May 2000 that he submitted shows he reported being discharged in November 1945 rather than July 1946. In addition, an Enlistment Record he submitted indicated he enlisted or was inducted on July 14, 1942 and he served for three years after that, which is also inconsistent with the dates he reported serving. Furthermore, in September 2009, he submitted a statement changing his service information, stating he served with the 14th Infantry USAFs/GRLA, 33rd Division. In his statement, he gave the same service dates but those are inconsistent with a document he submitted, which appears to be a discharge certificate from the United States Army indicating that he was honorably discharged from E Company, 14th Infantry AUS SF 33rd Division on November 30, 1945. In October 2013, the appellant submitted a copy of a certificate entitled “Confirmation of Military Service” that appears to have been given to him by the Republic of the Philippines, Department of National Defense, Military Service Board in November 1999 and indicated he was conferred full military veteran status by the Philippine government. The Veteran also submitted another document entitled United States of America, Certification of Military Service that was issued by the NPRC in January 2002. For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains the 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 this document, the Board is of the opinion that the document is not genuine and the information contained in it is inaccurate. The appellant’s name is misspelled; the service number is different than previously provided; his name and number and the date (day of the month and year) of the document do not appear to be in the same type as the rest of the typewritten words; and his name and number are not in alignment with the rest of the information on the form. The RO sought verification of the appellant’s service with the U.S. Armed Forces three times from the NPRC – in 2009, 2010 and 2017 – and each time the NPRC responded that the appellant “has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.” Furthermore, in each request sent, the Philippine RO stated that the appellant is not listed in the Reconstructed Recognized Guerrilla Roster maintained at the RO. The Board acknowledges that the first two requests for verification only included the service dates of December 8, 1941 to July 3, 1946 and that this period differs from the appellant’s service dates based on the November 1999 letter. However, the 2017 request for verification included the July 14, 1942 to November 30, 1945, dates of service and the NPRC continued to not find the appellant had recognized service. Moreover, the RO submitted the various documents the appellant had submitted to the RO with the request for verification for the NPRC to consider as well. Neither the change in the service dates nor these documents were sufficient to allow the NPRC to verify his reported period of service. Consequently, given VA is bound by the service department’s finding as to a claimant’s service, the Board has no choice but to find that the appellant does not have the requisite service to be found to be a veteran for VA benefit purposes. In his VA Form 9, the appellant asked for further clarification from the Board for the reason that the RO is limited in verifying his service. However, the law requires that the Board apply the same legal requirements for service verification as the RO. Moreover, it is not the RO or the Board that verifies the appellant’s service, but the NPRC that does so on behalf of the service department. The RO and the Board are bound to accept its determination as to a claimant’s service. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In summary, based on the available evidence regarding the appellant’s service, the provisions of 38 C.F.R. § 3.4 are dispositive in this matter. As the appellant did not have the requisite service required to confer eligibility for VA benefits, the appellant’s 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 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow