BVA9504364 DOCKET NO. 93-13 830 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Basic eligibility for nonservice-connected disability pension benefits. ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION A U.S. military records facility certified that the appellant had recognized guerrilla service from "April 1, 1945 to September 14, 1945" and Regular Philippine Army service from "September 15, 1942 to September 21, 1945"; he had no certified service with the Regular Philippine Scouts, also termed "old" Scouts. An original claim for compensation or pension, received in July 1992, requested benefits for a lung condition. Based upon the available record, including medical evidence which the appellant submitted in support of the claim, a December 1992 rating decision of the Manila, Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for pulmonary tuberculosis and atheromatous aorta. In correspondence from the appellant, dated in January 1993, he related that he was more than 65 years old; that he was entitled to benefits administered by VA; and that he was not required to submit medical evidence in support of an application for benefits. A February 1993 letter from the RO informed the appellant that he did not have the type of service which provided eligibility for nonservice-connected or "old age" pension benefits. By letter received in April 1993, the appellant reiterated statements made in his previous correspondence, and his letter was deemed to be a notice of disagreement to the RO's notification that he was ineligible for nonservice-connected pension benefits. He was provided a statement of the case in May 1993 regarding the issue of basic eligibility for nonservice- connected disability pension benefits. He submitted a formal appeal to the Board of Veterans' Appeals (Board) in May 1993 and once again reiterated statements made in earlier correspondence. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is only seeking benefits to which an individual with recognized guerrilla service is entitled. He asserts that entitlement to the benefit he requests does not require submission of medical evidence by an individual who, like himself, is more than 65 years old. He maintains that he is applying only for service-connected disability benefits; he does not seek nonservice-connected 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 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 the appellant does not meet criteria for basic eligibility for nonservice-connected disability pension benefits. FINDING OF FACT The appellant is certified as having had recognized guerrilla service from April 1, 1945 to September 14, 1945 and Regular Philippine Army Service from September 15, 1942 to September 21, 1945; he has no recognized Regular Philippine Scout ("old" Scout) service. CONCLUSION OF LAW The appellant does not meet basic eligibility requirements for nonservice-connected disability pension benefits. 38 U.S.C.A. §§ 107, 1502, 1521 (West 1991); 38 C.F.R. § 3.8 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The concept of "well-grounded" applies to the character of evidence presented by an appellant. Since in this case there is no dispute as to the evidence (specifically, the type of Philippine service performed), 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 has failed to state a claim upon which relief can be granted. Sabonis v. Brown, 6 Vet.App. 426 (1994). The procedural history of this appeal is set forth in the introduction portion of this decision. Notwithstanding the appellant's contentions, the Board concludes that he has effectively raised the issue of basic eligibility for nonservice- connected disability pension benefits. In this regard, we note that despite his reference to service-connected benefits, he has declined to submit evidence in support of a claim for service connection, apparently due to his belief that he is entitled to "old age" benefits based on being over the age of 65 years. Regardless of the description given it by the appellant, it is clear from his contentions that it is this "old age" or "over age 65" benefits which is being claimed. This is undoubtedly a reference to VA pension benefits, which formerly were payable to a veteran with the requisite wartime service over 65 years of age. See 38 U.S.C.A. § 502(a) (West 1989); 38 C.F.R. § 4.17 (1990). The law authorizes payment of pension to veteran of war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521 (West 1991). Service 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 among such military forces organized guerrilla forces), shall not be deemed to have been active military, naval, or air service for the purpose of any law of the United States confirming 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, except benefits under certain contracts of National Service Life Insurance; the Missing Persons' Act; and compensation for service-connected disability or death, dependency and indemnity compensation for service- connected death (with an exception); and burial benefits. 38 U.S.A. § 107; 38 C.F.R. § 3.8. With an exception not pertinent to this appeal, service in the Philippine Scouts (Regular Philippine Scouts) is included for VA disability pension, compensation, dependency and indemnity compensation and burial allowance. 38 C.F.R. § 3.8(a). In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the applicant have active military, naval or air service. Under the pertinent laws and regulations, service as a member of the Commonwealth Army of the Philippines, including the recognized guerrilla forces, is not deemed to be active service for nonservice-connected pension benefits. The appellant had no service with the Regular Philippine Scouts or "old" Scouts. The law precludes basic eligibility for nonservice-connected disability pension benefits based on the appellant's service; accordingly, the appeal must be denied. ORDER Basic eligibility for nonservice-connected disability pension benefits is denied. D. C. SPICKLER 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.