Citation Nr: 1031232	
Decision Date: 08/19/10    Archive Date: 08/24/10

DOCKET NO.  09-48 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUE

Legal entitlement to the one-time payment from the Filipino 
Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel


INTRODUCTION

In his claim for payment from the Filipino Veterans Equity 
Compensation Fund, the appellant indicated he had service in the 
Philippines from December 1941 to July 1966, but no qualifying 
service with the United States Armed Forces has been shown.

This case comes before the Board of Veterans' Appeals (Board) on 
appeal from a May 2009 decision by the above Department of 
Veterans Affairs (VA) Regional Office (RO), which determined that 
the appellant did not have qualifying service to be eligible for 
the one-time payment from the Filipino Veterans Equity 
Compensation Fund.

Please note this appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

The National Personnel Records Center (NPRC) 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 Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active military service 
for the purpose of obtaining the one-time payment from the 
Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) 
(West 2002 & West Supp. 2009); American Recovery and Reinvestment 
Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 
2009); 38 C.F.R. § 3.203 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating their 
claims for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 
C.F.R. §§ 3.102, 3.159, 3.326(a) (2009).

Congress, in enacting the statute, noted the importance of 
balancing the duty to assist with "the futility of requiring VA 
to develop claims where there is no reasonable possibility that 
the assistance would substantiate the claim."  Mason v. 
Principi, 16 Vet. App. 129, 132 (2002).  Where the law, and not 
the evidence, is dispositive of a claim, the VCAA is not 
applicable.  Id.  (VCAA not applicable to claim for non-service-
connected pension when the claimant did not serve on active duty 
during a period of war, as required by law).  The Court has held 
that, when the interpretation of a statute is dispositive of the 
issue on appeal, neither the duty-to-assist nor the duty-to-
notify provisions of the VCAA are implicated.  Dela Cruz v. 
Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. 
App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 
2004).

Because the law is dispositive in the instant appeal, the Board 
finds that the provisions of the VCAA are not applicable to this 
appellant's claim.  Nonetheless, we do note that the May 2009 
decision and October 2009 Statement of the Case (SOC) included 
citations to the laws and regulations pertaining to eligibility 
for benefits under the Filipino Veterans Equity Compensation Fund 
and verification of military service.  The appellant submitted 
several statements subsequent to receiving the May 2009 decision 
and October 2009 SOC indicating he understood the type of 
evidence required to substantiate his claim, and has not 
identified any additional pertinent evidence which should have 
been obtained.  

The Board concludes that no further notification or development 
of evidence is required.  Therefore, no useful purpose would be 
served in remanding this matter for yet more development.  Such a 
remand would result in unnecessarily imposing additional burdens 
on VA, with no additional benefits flowing to the appellant.  The 
Court of Appeals for Veteran Claims has held that such remands 
are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 
(1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


II.  Filipino Veterans Equity Compensation Fund

Under the American Recovery and Reinvestment Act of 2009, a new 
one-time benefit is provided for certain Philippine veterans to 
be paid from the "Filipino Veterans Equity Compensation Fund."  
American Recovery and Reinvestment Act of 2009 § 1002, Public Law 
No. 111-5 (enacted February 17, 2009).  Payments for eligible 
persons will be either in the amount of $9,000 for non-United 
States citizens, or $15,000 for United States citizens.

For eligible persons who accept a payment from the Filipino 
Veterans Equity Compensation Fund, such payment "shall 
constitute a complete release of any claim against the United 
States by reason of [such] service . . . ."  However, nothing in 
this act "prohibit[s] a person from receiving any benefit 
(including health care, survivor, or burial benefits) which the 
person would have been eligible to receive based on laws in 
effect as of the day before the date of the enactment of this 
Act."

Section 1002 is entitled "Payments to Eligible Persons Who 
Served in the United States Armed Forces in the Far East During 
World War II".  Section 1002(c)(1) provides that the Secretary 
may make a payment from the compensation fund to an eligible 
person who, during the one-year period beginning on the date of 
enactment of the Act, submits to the Secretary a claim for 
benefits under this section.  The application for the claim shall 
contain such information and evidence as the Secretary may 
require.  Section 1002(c)(2) provides that, if an eligible person 
who has filed a claim for benefits under this section dies before 
payment is made under this section, the payment under this 
section shall be made instead to the surviving spouse, if any, of 
the eligible person.  

Section 1002 (d) provides that an eligible person is any person 
who - (1) served - (A) 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 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 (B) in the Philippine Scouts under 
section 14 of the Armed Forces Voluntary Recruitment Act of 1945 
(59 Stat. 538); and (2) was discharged or released from service 
described in paragraph (1) under conditions other than 
dishonorable.

In April 1973, the National Personnel Records Center (NPRC) 
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.  
They confirmed a negative search in September 2005.

The appellant did not submit a DD Form 214, a Certification of 
Release or Discharge from Active Duty, or an original Certificate 
of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  

The appellant did submit a number of documents which he contends 
show that he had service in the United States Armed Forces.  
First, he submitted a February 1973 Certification issued by the 
General Headquarters of the Armed Forces of the Philippines, 
which lists the appellant's military status as "USAFFE," or 
United States Armed Forces Far East.  Additionally, he submitted 
an April 1964 Statement of Services from the 75th Philippine 
Constabulary Company.  This statement indicates that the 
appellant was inducted into the 203rd Engineering Battalion, 81st 
Division, of the USAFFE in January 1942, and that he joined the 
guerrilla movement and was assigned to the 3rd Battalion, 120th 
Regiment, 108th Division, in November 1942.  Next, the appellant 
submitted an Award that includes the American Defense Medal, 
Asiatic-Pacific Theater Medal, and World War II Victory Medal, 
among others, signed in December 1966 and issued from the Office 
of the President of the Republic of the Philippines.  However, 
these documents fail to satisfy the requirements of 38 C.F.R. § 
3.203 as acceptable proof of service, as they are not official 
documents of the appropriate United States service department, 
but rather documents from the Philippine government.  As such, 
the documents may not be accepted by the Board as verification of 
service for the purpose of determining eligibility for VA 
benefits, including the one-time payment from the Filipino 
Veterans Equity Compensation Fund.

The Board also recognizes the appellant's submission of 
photographs of medals he contends he received from the United 
States military.  Indeed, two of the medals have "United States 
of America" inscribed upon them.  The appellant contends that 
the mere issuance of these medals by the United States military 
proves the appellant served with a regular component of the 
United States Armed Forces.  However, such medals, even if it 
were verified that they were issued to the appellant, do not 
establish service for the purpose of obtaining payment from the 
Filipino Veterans Equity Compensation Fund.  The September 1990 
Application for Old Age Pension submitted to the Philippine 
Veterans Affairs Office on which the appellant indicated he 
served for the USAFFE also does not establish qualifying service 
for payment from the Filipino Veterans Equity Compensation Fund.  

The NPRC 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.  This verification is binding on VA such that VA has no 
authority to change or amend the finding.  Duro v. Derwinski, 2 
Vet App. 530, 532 (1992).  The proper course for the appellant, 
if he 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).  Recognition of 
service by the Philippine Government, although sufficient for 
entitlement to benefits from that Government, is not sufficient 
for benefits administered by VA.  This department is bound to 
follow the certifications by the service departments with 
jurisdiction over United States military records.

Based upon the record in this case, 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.  The appellant may not, therefore, be considered an 
eligible person for the purpose of establishing entitlement to 
the one-time payment from the Filipino Veterans Equity 
Compensation Fund.




ORDER

Legal entitlement to the one-time payment from the Filipino 
Veterans Equity Compensation Fund is denied.




____________________________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs