Citation Nr: 0006725 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-19 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Basic eligibility for Department of Veterans Affairs (VA) benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 1998 decision of the Manila, Philippines Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant did not have the required military service to be eligible for VA benefits. The Board notes that in his substantive appeal, VA Form 9, received in December 1999, the appellant indicated that he desired a Travel Board Hearing. However, the appellant's hearing was before a local Hearing Officer. Subsequent to the hearing, the appellant executed a statement, which indicates that he was satisfied with the hearing before the Hearing Officer and did not desire another hearing before a member of the Board. FINDING OF FACT The Department of the Army 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 United States Armed Forces. CONCLUSION OF LAW The appellant has not met the basic service eligibility requirements and may not be considered a veteran for purposes of VA benefits. 38 U.S.C.A. §§ 101, 107, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.1, 3.8, 3.9, 3.203 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant originally filed an application for VA benefits in 1963. Of record at that time was an application for compensation or pension, dated in June 1963, in which the appellant reported service from August 1942 to December 1945. In 1964, the RO requested that the United States Army Records Center verify the appellant's service. The RO provided the appellant's name, the alleged dates of service from August 1942 to December 1945 and the reported service as a Private, Markings Fil. Am., Troops Infantry. The written request also contained the following statement: "1948 RR of 'S' Co, Pateros Unit, 1st Yay Regt., Markings Fil-American Grlas, lists one - BAUTISTA, Julian - Sgt." In January 1964 the USA Records Center verified 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. A hand written notation states, "Roster entry does not pertain." Accompanying the appellant's request to reopen his claim, dated in May 1998, was a Philippine Army document which stated that the appellant served in G Co. (Pateros Unit), 1st Yay Regt., MFAG, in the Army of the Philippines, with recognized service from May 1942 to August 1945, and carried as Sergeant on the Revised Reconstructed Guerilla Roster of 1948. The appellant also submitted a copy of a statement from the Manila, Philippines VARO, dated in January 1978, advising him that the United States Department of the Army showed that no change was warranted in their prior negative certification. Additionally, the appellant provided a treatment record from Veterans Memorial Medical Center, showing he veteran was there in 1996. In November 1998, the RO received an "Affidavit" from the appellant, who reported that he served in the guerilla unit with the rank of Sergeant under the troop of General Agustin Marking and Colonel Yay Panlilio, otherwise known as MFAG. In his substantive appeal, VA Form 9, received in December 1998, the appellant reported that he served as a Sergeant in G. Co. (Pateros Unit), 1st Yay Regt., MFAG and was inducted under the joint guerilla and American forces. Further, he In December 1998, the RO again requested that the service department verify the appellant's service. The RO provided the appellant's full name, including his middle name, the alleged dates of service from May 1942 to August 1945, the date of birth of February 16, 1928, and the reported service in G Co. (Pateros Unit), 1st Yay Regt., MFAG. In January 1999, the United States Army Reserve Personnel Center (ARPERCEN) reported that no change was warranted in the prior negative certifications. At a personal hearing in March 1999, the appellant testified that he had qualifying military service. He stated that during service he suffered hardships and after discharge went home to recuperate from an illness. Criteria A person claiming entitlement to VA benefits must achieve the status of claimant before an obligation arises to determine whether a claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); Sarmiento v. Brown, 7 Vet. App. 80 (1994). Eligibility for VA benefits is governed by statutory and regulatory law, which define an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6 (1999). The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A "service-connected" disability is a disability that was incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). "Active military, naval, and air service" includes active duty. "Active duty" is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a)-(b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. Additionally, 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, as authorized by 38 U.S.C.A. § 107; 38 C.F.R. §§ 3.8, 3.9. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD 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 the VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of this section, VA shall request verification of service from a service department. 38 C.F.R. § 3.203. With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine Scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla. 38 C.F.R. §§ 3.8, 3.9. Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that a service department determination as to an individual's service shall be binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Analysis The RO requested verification of the appellant's service on three separate occasions. In these requests, the RO reported all of the identifying information regarding the appellant provided to the RO. In January 1964 and January 1978, the United States Department of the Army Records Center reported 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. Additionally, in January 1999 ARPERCEN reported that no change was warranted in the prior negative certifications. As noted above, the Court has held that a service department determination as to whether or not an individual had qualifying service is binding on VA. See Duro; Dacoron. Additionally, ARPERCEN has stated that the records for each potential claimant are maintained in alphabetical order and that, unless the claimant reports personal data such as a name which is different from that previously provided in a request for service verification, there is no value in resubmitting a request for verification. See Sarmiento. In the December 1998 request the RO provided the appellant's full name, including his middle name. The appellant has submitted no such additional information that would warrant another request for verification. The Board notes that the record contains a "Certification" from the Philippine Army has verifying the appellant's service as a Sergeant in G. Co (Pateros Unit), 1st Yay Regt., MFAG. However, VA is not bound by Philippine Army determinations of service. Additionally, although he has submitted a treatment record from the Veterans Memorial Medical Center, it is not a VA facility. In any event, the Board again notes that the Court has held that a service department determination as to an individual's service shall be binding on the VA. See Duro; Dacoron. Therefore, inasmuch as the service department's verification of the appellant's service is binding on VA, the Board concludes that the appellant is not considered a "veteran" for purposes of entitlement to VA benefits and has not attained status as a valid claimant. Therefore, the appellant's claim for entitlement to VA benefits must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Basic eligibility for VA benefits is not established; thus, the claim is denied. JANE E. SHARP Member, Board of Veterans' Appeals