BVA9502079 DOCKET NO. 93-08 559 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether the appellant has basic eligibility for Department of Veterans Affairs (VA) benefits based on internment as a prisoner of war (POW) of the Japanese Government. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The service department has certified that the appellant had recognized active service from December 3, 1941, to May 23, 1942, and from January 22, 1946, to March 25, 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 determination by the VA Regional Office in Manila, Philippines (RO). In August 1957 the Board determined that the veteran was not entitled to service connection for certain disabilities which were claimed to have been incurred or aggravated during the veteran's recognized service and while he was a POW. That decision noted, as a matter of fact, that the appellant had not been certified by the service department as having been a POW. Since that time, laws have been enacted which provide for service connection for several disabilities which appear after service if the veteran has been a POW. This presumptive provision is now codified at 38 U.S.C.A. § 1112(b)(1991). The current appeal has been certified on the limited issue of basic eligibility for consideration under this specific provision. Since the pertinent statute did not exist at the time of the prior Board decision and because the issue of the veteran's POW status was not a recognized appellate issue at that time, it will be afforded de novo consideration. We would further note that a September 1994 communication from the RO indicates that a claim had recently been made for service connection for unspecified disabilities based on the veteran's recognized service. That claim is separate and distinct from the certified appellate issue and is not part of the current appeal. The record contains an Application for Correction of Military Record (DD Form 149) which was erroneously submitted to the Board, apparently in July 1993. The RO should take action to forward this form to the appropriate Department of Defense activity as indicated on the reverse of the application. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the appellant qualifies for consideration under 38 U.S.C.A. § 1112(b) because he was a prisoner of war from May 26, 1942, to March 7, 1943. 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 appellant's 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 a preponderance of the evidence is against recognition of the appellant as a prisoner of war. FINDINGS OF FACT 1. The service department has certified that the appellant had recognized service from December 30, 1941, to May 23, 1942, and from January 22, 1946, to March 25, 1946. 2. The service department has certified that the appellant had no prisoner of war status, and the appellant was not on active service from May 24, 1942, to January 21, 1946. CONCLUSION OF LAW The appellant was not a prisoner of war from May 26, 1942, to March 7, 1943, for purposes of meeting the basic service eligibility requirements for VA benefits. 38 U.S.C.A. § 101 (1991); 38 C.F.R. §§ 3.1, 3.8, 3.9, 3.203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The concept of "well grounded" applies to the character of the evidence presented by a claimant. For purposes of this decision, there is no dispute as to the evidence (specifically, the dates of the appellant's prisoner-of-war status), but only as to the law and its meaning, the concept of "well grounded" is not found to be applicable. Rather, it is found that the appellant had failed to state a claim on which relief can be granted. Sabonis v. Brown, 6 Vet.App. 426 (1994). The record reflects that the appellant has submitted multiple pieces of evidence, including affidavits, and certifications from the Philippine Department of National Defense, and the Philippine National Red Cross, which indicate that he was a prisoner of war within the time period from May 26, 1942, to March 7, 1943. Certifications from the appropriate United States service department with respect to the appellant's active service have been obtained. Those certifications indicates that the appellant began his active service on December 30, 1941, and was in a beleaguered status from that time until May 5, 1942. From May 6, 1942, he was missing until May 23, 1942. During that time frame he was classified as with his unit awaiting formal surrender to the enemy. From May 24, 1942, to August 14, 1945, he was in a no-casualty status. From August 15, 1945, to January 21, 1946, he was absent-without-leave. From January 22, 1946, to March 25, 1946, he had Regular Philippine Army service. He was not entitled to receive pay from May 24, 1942, to March 7, 1943, because his alleged prisoner-of-war status was not supported. He was not entitled to receive pay from March 8, 1943, to August 14, 1944, because he was a member of the Japanese Bureau of the Constabulary (BC). He was not entitled to receive pay from August 15, 1944, to January 21, 1946, because he was following civilian pursuits and not engaged in military activities and was absent without leave. It was also certified that he had no recognized guerrilla service. The effect of this certification is that the appellant had recognized service from December 30, 1941, to May 23, 1942, and from January 22, 1946, to March 25, 1946. The veteran's reported service with the BC has not been fully developed and the RO has not considered its possible effect on the veteran's recognized service under the provisions of 38 U.S.C.A. § 6104. We also will accept the certified periods of service as recognized service for the purpose of this decision only. For Philippine service the period of active service will be from the date certified by the service department as the date of enlistment or date of report for active duty, whichever is later, to date of release from active duty, discharge, or death, whichever was earlier. Release from active duty includes leaving one's unit due to capitulation, escape from prisoner of war status and beginning of missing-in-action status, except where determined to have been with his unit. 38 C.F.R. § 3.9(a). The service department has certified that the appellant's alleged prisoner-of-war status from May 24, 1942, to March 7, 1943, is not supported, as well as certifying that there is no record of prisoner-of-war status for the appellant during World War II. The service department's certification with respect to the appellant's status is binding on the VA and the documentation from other sources which he has submitted is simply not pertinent. 38 C.F.R. § 3.203, Duro v. Derwinski, 2 Vet.App. 530 (1992). Since the appellant was not on active service from May 24, 1942, to March 7, 1943, as certified by the service department, any prisoner-of-war status during that time period may not be recognized and the appellant has failed to state a claim on which relief can be granted under the specific provisions of 38 U.S.C.A. § 1112(b). Sabonis, supra., Aguilar v. Derwinski, 2 Vet.App.21 (1991). His proper remedy is an application to the Board for Correction of Military Records, as the veteran apparently recognizes. Cahall v. Brown, No. 93-773 (U.S. Vet.App. Dec. 19, 1994). ORDER Eligibility for VA benefits on the basis of prisoner-of-war status is not established. The appeal is denied. ROBERT D. PHILIPP 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.