Citation Nr: 21063648 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-26 653 DATE: October 15, 2021 ORDER New and material evidence having been presented, the claim of entitlement to nonservice-connected pension benefits is reopened. To this limited extent only, the appeal of that issue is granted. The Appellant is not a veteran of the United States Armed Forces and is therefore not entitled to benefits from the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran's first claim for nonservice-connected pension benefits was denied in a January 2000 administrative decision that was not appealed; no further evidence relevant to the Veteran's status as a veteran was submitted for a period of one year following the January 2000 rating decision. 2. Evidence relevant to the nonservice-connected pension claim was received since the January 2000 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Appellant had no military service in any branch of the United States Armed Forces. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2000 denial became final; the criteria for reopening the previously denied claim for nonservice-connected pension benefits have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.203, 20.1103. 2. The Appellant is ineligible to receive VA benefits. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6, 3.7, 3.40. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals on appeal from a June 2013 administrative decision finding that the Appellant did not have recognized active military service entitling him to VA benefits. This case was previously before the Board in February 2019 and May 2021, when it was remanded for additional development. The case has been returned to the Board for further appellate review. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim for nonservice-connected pension benefits A claim that has been finally adjudicated may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; see also D'Amico v. West, 209 F.3d 1322 (2000) (applying the new and material evidence standard to claims previously denied on the basis of veteran status and character of discharge). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). The Appellant initially filed a claim for disability benefits for arthritis and rheumatism in August 1997 based on World War II service with the Walter Cushing guerilla organization in the Philippines; in November 1997, he changed the nature of his claim from disability benefits to one for nonservice-connected pension. This claim was denied on the grounds that the guerrilla organization with which the Appellant reported serving is not recognized by the U.S. Department of the Army. The Appellant received notice of this decision in January 2000, and did not submit any new or material evidence or a notice of disagreement in the year following the notification. In the course of the Appellant's initial claim, he also reported serving from July 1945 to December 1945 with the Luzon Guerrillas Army Forces (LGAF). In July 2002 and February 2009, the Appellant submitted further materials and claims attempting to establish his service with the Walter Cushing guerrilla organization; in November 2002 and July 2011, VA sent the Appellant notice that his claims were denied on the grounds that the Appellant did not have valid military service to be eligible for VA benefits. Both of these decisions became final, as the Appellant did not submit any new or material evidence or a notice of disagreement within a year of receiving notice of the denials. The Appellant filed the current claim that is on appeal in May 2013. In September 2015, the RO again requested verification of the Appellant's service, including both guerrilla units with which the Veteran reported service. The Board finds the new verification evidence to be material. See Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008) (new evidence must be forwarded to relevant service department for renewed request for verification of service). Therefore, the issue of whether the Appellant has service qualifying him for the receipt of VA benefits is reopened. Status as a Veteran 2. Entitlement to veteran status for basic eligibility for VA benefits, to include nonservice-connected pension benefits A "veteran" is a person who served in the active military, naval or air service, and was discharged or released therefrom 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. Certain service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including particular guerrilla service, is recognized service for specified VA purposes. 38 U.S.C. § 107; 38 C.F.R. §§ 3.7, 3.40. Such service includes those who served: (1) 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 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; or (2) in the Philippine Scouts under Section 14 of the Armed Forces Voluntary Recruitment Act of 1945; and was discharged or released from service under conditions other than dishonorable. 38 U.S.C. § 107. 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, 749 (Fed. Cir. 1997). When service department certification is required, the decision of the United States service department is conclusive and binding on VA. 38 C.F.R. § 3.203(c); see also Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the 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 at 749. 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; see also Soria, 118 F.3d at 748-49. In this case, the Appellant has submitted documentation showing that he served in the Walter Cushing guerilla organization, attached to the 121st Infantry Regiment, from June 1942 to December 1945. He also asserted that he had service with the LGAF from July 1945 to December 1945. In September 1997, the RO requested verification of the Appellant's service by the United States Department of the Army using the Appellant's full name, place of birth, date of birth, dates of service, and the unit designation of the 121st Infantry Regiment provided by the Appellant in his initial supporting documents. In November 1997, the U.S. Army Reserve Personnel Center responded that the Appellant has no service as a member to the Philippine Commonwealth Army (PCA), including the recognized guerillas, in the service of the United States Armed Forces. The RO made a similar request, again reporting the unit designation as the 121st Infantry Regiment, in May 2011 to the National Personnel Records Center (NPRC), which responded in June 2011 that the Appellant had no service as a recognized guerrilla in the service of the United States Armed Forces. In September 2015, the RO filed another request with the Department of the Army for verification of the Appellant's service, and included the Appellant's full name, place of birth, date of birth, dates of service, and both the unit designations of the 121st Infantry Regiment and the LGAF service. See Tagupa v. McDonald, 27 Vet. App. 95 (2014) (Memorandum of Agreement between Department of the Army and National Archives and Records Administration was unclear whether National Archives was authorized to make administrative determinations verifying service). In December 2015, the Department of the Army responded that it was unable to change the previous negative service determination. The memorandum also stated that, although the Appellant's name is listed on the roster for the Walter Cushing's guerrilla organization, this organization is not an officially recognized unit and that individuals claiming service with this organization are denied creditable service. A September 2020 request to the NPRC again rendered the same response, that the Walter Cushing's guerrilla organization was not a recognized guerrilla organization and that individual claiming service with this organization are denied creditable service. The U.S. Department of the Army and the NPRC have certified and re-certified that the Appellant did not have service as a member of the PCA, including the recognized guerrillas, in the service of the United States Armed Forces. When service department certification is required, the decision of the United States service department is conclusive and binding on VA. 38 C.F.R. § 3.203(c). Further, the multiple documents provided by the Appellant do not satisfy the requirements of the regulations as acceptable proof of service, as these are not official documents of an appropriate United States service department or the NPRC. See 38 C.F.R. § 3.203. These documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including a nonservice-connected pension. (Continued on the next page) 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). In May 2021, the Board remanded this case to give the Appellant the opportunity to make an application with the Department of the Army regarding whether his guerrilla service was with a recognized guerrilla organization, but there is no indication in the record the Appellant did so. In short, although the record establishes that the Appellant served with a guerrilla organization, the record does not reflect that the Appellant has any qualifying service in order to meet the basic eligibility criteria for establishing entitlement to VA disability benefits. Therefore, the claim is denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, Counsel 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.