BVA9506471 DOCKET NO. 93-12 841 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Basic eligibility for pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The appellant performed recognized guerrilla and Philippine Army service from June 1943 to March 1946. This matter came before the Board of Veteran's Appeals from a January 1993 decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which held that the appellant was not basically eligible for non-service-connected pension benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that, as he now resides in the United States and became a U.S. citizen in 1992, he should be eligible for VA non-service-connected pension benefits by reason of his recognized guerrilla and Philippine Army service during World War II. He also claims his many years of service with the Philippine Army, from 1938 to 1964, should qualify for VA pension benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that, as a matter of law, the appellant is ineligible for VA pension benefits. FINDING OF FACT The U.S. service department has certified that the appellant's only service consisted of recognized guerrilla and Philippine Army service from June 1943 to March 1946; he claims VA non- service-connected pension benefits. CONCLUSION OF LAW Based on the type of his military service, the appellant is ineligible for VA pension benefits. 38 U.S.C.A. § 107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including organized guerrilla forces, 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, shall not be deemed to have been active military service for the purpose of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, with certain exceptions such as VA compensation for service-connected disabilities. VA non-service-connected pension is not one of the exceptions to the general disqualifi-cation from benefits for those having Philippine Army or guerrilla service. 38 U.S.C.A. § 107(a). The appellant has been certified, by the U.S. service department, as having only recognized guerrilla and Philippine Army service between 1943 and 1946. This determination, as to the nature and extent of his U.S. recognized service is binding on the VA. Duro v. Derwinski, 2 Vet.App. 530 (1992). The appellant reports many years of other service with the Philippine Army, but that is merely service with a foreign government and is irrelevant to qualifying for VA benefits. As to the appellant's World War II service with the Philippine Army and guerrillas, 38 U.S.C.A. § 107(a) clearly renders him ineligible for VA non-service-connected pension benefits. The law has been upheld as constitutional. Quiban v. Veterans Administration, 928 F.2d 1154 (D.C. Cir. 1991). The focus of the statute is on the type of the Philippine service, and the appellant remains ineligible for VA pension benefits regardless of later changing his residence to the U.S. or becoming a U.S. citizen. Talon v. Brown, 999 F.2d 514 (Fed. Cir. 1993); Florentino v. Brown, No. 93-1025 (U.S. Vet. App. Feb. 1, 1995). The law, not the facts, is dispositive of the issue in this case. The appellant is clearly ineligible for VA non-service-connected pension benefits, and he has failed to state a claim on which relief can be granted. Hence, as a matter of law, his claim must be denied. Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER Basic eligibility for pension benefits is denied. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.