Citation Nr: 21062307
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 14-40 665
DATE: October 6, 2021

ORDER

Basic eligibility for VA benefits is denied.

FINDINGS OF FACT

1. The appellant had no service in the Armed Forces of the United States.

2. The Board may not award benefits on the basis of equitable relief.

CONCLUSION OF LAW

The appellant did not have the requisite service to render him basically eligible for VA benefits. 38 U.S.C. §§ 101, 107, 503, 5107; 38 C.F.R. §§ 2.7, 3.1, 3.40, 3.41, 3.203.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant served with a Special Guerilla Unit from May 1968 to July 1975. 

This matter comes before the Board from a November 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Newington, Connecticut, that determined that the appellant did not have a period of verified service for purposes of establishing basic eligibility to VA benefits. The appellant failed to appear for a Travel Board hearing scheduled on August 9, 2021

1. Whether the appellant had a period of verified service for purposes of establishing basic eligibility to VA benefits.

The appellant seeks entitlement to VA benefits on the basis that he had valid military service with the United States Armed Forces during the Vietnam War. In support of his claim, he submitted documents showing that he served with the Special Guerrilla Unit (SGU) in Laos from May 1968 to July 1975. In a June 2014 correspondence, he stated that he was wounded in combat which resulted in amputations of both legs.

Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. 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).

For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation, or burial benefits, VA may accept evidence of service submitted by an appellant, 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 certain conditions. 38 C.F.R. § 3.203(a). 

When a claimant does not submit evidence of service, or the evidence submitted does not meet the requirements of paragraph(a), "the Department of Veterans Affairs shall request verification of service from the service department." 38 C.F.R. § 3.203(c). The U.S. Court of Appeals for the Federal Circuit held that "section 3.203(c) requires verification of service from the service department whenever a claimant lacks the kind of official evidence specified in section 3.203(a)." Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008); see also Tagupa v. McDonald (Vet. App. 2014) (noting that 38 C.F.R. § 3.203(c) requires verification from the relevant service department).

VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the United States Armed Forces. Service department findings are binding on VA for purposes of establishing service.

VA has a duty to assist claimants in substantiating their claims, including the requirement to show qualifying service. See Tagupa v. McDonald, 27 Vet. App. 95 (2014). It has also long been recognized that, once a service department determines whether an individual has or does not have qualifying service, its determination is "conclusive and binding" on VA. Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In Tagupa, the Court of Appeals for Veterans Claims then 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 the National Archives and Records Administration (NARA), of the service department's authority to verify the nature of an appellant's service.

The Hmong Special Guerrilla Units actively supported U.S. efforts in the Vietnam conflict from 1961 to 1975. SGUs fought the Communist Lao and North Vietnamese, rescued downed U.S. pilots and protected U.S. troops operating in that area. See e.g. http://www.levin.senate.gov/newsroom/speeches/speech/in-recognition-of-the-hmong-special-guerrilla-units/?section=alltypes. Although the U.S. honors SGU Veterans for their sacrifices and their contribution to U.S. efforts in the Vietnam conflict, SGUs are not included in the definition of the Armed Forces of the United States. See 38 U.S.C. § 101, 106, 107; 38 C.F.R. § 3.1, 3.7.

The Board considered whether further development was required; however, this case differs because the service claimed by the appellant is not qualifying U. S. military service. 

The appellant has submitted a Form DD 214 signed by the Chief of CIA Guerrilla Operation in North in Laos. Additionally, he has submitted a letter of recognized service from an individual purporting to be the CIA case officer who stated that the appellant served in the U.S. Secret Army and SGU at the "Agency's direction." He also submitted documentation of training with U.S. Army Special Forces, as well as military awards and decorations. His primary contention and documentation is that his service with the Special Guerilla Unit in Laos should qualify him for VA benefits. 

A May 2013 request to the National Personnel Records Center returned indicated that a record could not be identified based upon the information provided (name and dates of service). 

The NPRC has certified that the appellant did not have service as a member of the United States Armed Forces. Moreover, the service documents provided by the appellant do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because these are not official documents of the appropriate United States service department or the NPRC. These documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits. The proper course for any claimant who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). 

The Board notes that the appellant has stated that recognition of SGU members for purposes of VA benefits is being considered for Congressional legislation. Until such time as Congress passes legislation which affords SGU members entitlement for VA benefits, the Board must apply the law as currently codified in 38 U.S.C. § 101, 106, 107; 38 C.F.R. § 3.1, 3.7. However, this would not preclude the appellant from filing a claim after the passing of any such legislation.

The Board finds that since the appellant does not have the requisite service to qualify for VA benefits, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994).

The Board is sympathetic to the appellant's claim, supported by the aforementioned documentation, that he served honorably in support of U.S. troops during the Vietnam conflict. Neither the Board nor the U.S. Court of Appeals for Veterans Claims (Court) is a body which may provide for equitable relief under any circumstances. See Moffitt, 10 Vet. App. at 225 ("[The] Court [and, by extension, the Board] is not a [forum] of equity and cannot provide equitable relief" (citing Harvey v. Brown, 6 Vet. App. 416, 425 (1994)); cf. Suttmann v. Brown, 5 Vet. App. 127, 138 (1993) (holding that the Board lacks jurisdiction to review the Secretary of VA's exercise of 38 U.S.C. § 503(a) to provide equitable relief at his discretion). That is, the Board cannot go above and beyond what is allowed by specific legislative or regulatory directives (i.e. legal mandates) in the award of benefits (e.g. as enumerated in the United States Code and Code of Federal Regulations). As this is the case, equitable relief cannot be granted.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	O'Connor, Michael

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.