Citation Nr: 20009920 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-40 913A DATE: February 6, 2020 ORDER The appellant is not a veteran for purposes of entitlement to VA benefits and basic eligibility for VA disability benefits is denied. FINDING OF FACT The service department 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have verifiable service that establishes veteran status. 38 U.S.C. § 101(2), (24); 38 C.F.R. §§ 3.1(d), 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that he had recognized Philippine guerrilla service, in the service of the United States Armed Forces during World War II. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 decisional letter by the Regional Office (RO), in Manila, Republic of the Philippines. Veteran Status Generally, in order to qualify for VA benefits, a claimant or the party upon whose service the claimant predicates the claim must be a “veteran.” Tagupa v. McDonald, 27 Vet. App. 95, 98 (2014) (citing Donnellan v. Shinseki, 24 Vet. App. 167, 170-71 (2010) (internal quotations omitted). A “veteran” is “a person who served in the active military, naval, or air service,” and was discharged under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes active duty, which is defined as full time duty in the Armed Forces. 38 C.F.R. § 3.6. The “Armed Forces” consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. In July 1941, President Roosevelt placed the military forces of the Philippines in the service of the U.S. Armed Forces of the Far East, and members of the Philippine forces who fought against the Japanese or who fought as guerrillas during the Japanese occupation may be eligible for certain veteran’s benefits from the United States. See Tagupa, 27 Vet. App. at 98 (citing Capellan v. Peake, 539 F.3d 1373, 1375 (Fed. Cir. 2008). Accordingly, service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes. 38 U.S.C. § 107; 38 C.F.R. § 3.40. 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), 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 with the relevant service department, not with VA. Soria, 118 F.3d 747. 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, 118 F.3d 747. With regard to verification of service, 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). When a claimant does not submit evidence of service that meets the above requirements of 38 C.F.R. § 3.203(a) and (b), VA “shall request verification of service from the service department.” 38 C.F.R. § 3.203(c). See also Tagupa, 27 Vet. App. at 99. The United States Court of Appeals Veterans Claims (Court) has held that findings by a United States service department verifying or denying a person’s service are binding and conclusive upon the VA. See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In Tagupa v. McDonald, 27 Vet. App. 95, 101 (2014), the Court held that “absent evidence of delegation to the NPRC [National Personnel Records Center] of the service department’s authority to determine qualifying service, the plain mandatory language of VA’s regulation controls. That language clearly states that, when VA has determined that evidence of service does not comply with [38 C.F.R. § 3.201] subsection (a), VA shall request verification of service from the service department.” Tagupa (quoting 38 C.F.R. § 3.203(c)). In January 2016, the Department of the Army and NARA signed an MOA that clearly and unambiguously delegated responsibility of verifying military service to the NPRC and effectively superseded a 1998 MOA that was at issue in Tagupa. 1. Whether the appellant has legal entitlement to VA benefits due to status as a veteran. In this case, the threshold question for entitlement to VA benefits is whether the claimant has qualifying service for VA purposes. The claimant contends he has such service for VA benefits purposes. The appellant has claimed service from April 1945 through January 1946. The appellant submitted a copy of Special Order 117 which purports to show that he was inducted into service in the Replacement and Casualty Battalion of the United States Army Forces in the Philippines in April 1945. The appellant also submitted a copy of Special Order 15 which purports to show that he was discharged from the same unit in January 1946. The appellant has also claimed that he served with the 1st Bolo Battalion, of the Philippine Guerrilla Forces, under the command of a United States Army officer. The appellant has submitted a Philippine Army AGO6D form purporting to establish his military service during World War II. In August 2013, the National Personnel Records Center (NPRC) submitted a letter stating that there was no claims folder for the Appellant. Further, the appellant’s name was not listed among the soldiers whose service was verified for the appellant’s unit. Additionally, the NPRC stated that the appellant was not on the Recognized Reconstructed Guerrilla Roster (RRGR). In February 2014, the NPRC submitted a letter stating that there was no claims folder for the Appellant. Further, the appellant’s name was not listed among the soldiers whose service was verified for the appellant’s unit. In March 2014, the NPRC submitted a letter stating that there was no claims folder for the Appellant. Further, the appellant’s name was not listed among the soldiers whose service was verified for the appellant’s unit. In June 2014, the NPRC submitted a letter stating that there was no claims folder for the Appellant. Further, the appellant’s name was not listed among the soldiers whose service was verified for the appellant's unit. In March 2016, the NPRC submitted a letter stating that there was no claims folder for the Appellant. Further, the appellant’s name was not listed among the soldiers whose service was verified for the appellant’s unit. In October 2019, the NPRC submitted a letter stating that there was no basis to change its previous determination that the appellant did not have verified service. The NPRC also determined that a copy of the Affidavit for Philippine Army Personnel regarding the appellant had not been located, and that, even if the affidavit were located, the appellant’s service must be authenticated from the official archives. The NPRC noted that the appellant’s service could not be established from official archives. The NPRC has duly considered the claimant’s application for VA benefits and has, in effect, certified on six occasions 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. Importantly, the NPRC has considered the specific documents submitted by the appellant in support of his assertion of “veteran” status. The Board is bound by that certification. See Capellan, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant’s only recourse lies within the service department, not with VA). The Board has also considered the documents submitted by the appellant in support of his claim, as well as his lay statements, and finds that he did not have qualifying service to render him eligible for VA benefits. The Board acknowledges the certifications from the Republic of the Philippines, Department of National Defense Military Service Board and the Military Service Board of the Department of National Defense attesting to his "veteran" status. However, this and other documentation he has provided in support of the claim fail to meet the requirements of 38 C.F.R. § 3.203(a). Under the provisions of 38 C.F.R. § 3.203, none of the documents submitted by the appellant constitutes valid evidence of service that qualifies him for VA benefits. In this regard, the Board points out that the appellant’s documents are not documents issued by a United States military service department. The numerous certifications from the NPRC indicating that the appellant had no qualifying service are binding on VA and it has no authority to change or amend the finding. See Duro, 2 Vet. App. at 532, supra. The appellant has provided no further evidence that would warrant a request for re-certification from the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The appellant has not submitted any document issued by a U.S. service department, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, verifying his service 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. See Duro, 2 Vet. App. at 532. As such, the basic eligibility criteria for establishing status as a Veteran have not been met. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.