Citation Nr: 1031233 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-32 159A ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.C. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The record indicates that the appellant had a period of duty from September 1943 to March 1945 with the Philippine Army, but no qualifying service with the United States Armed Forces. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which found that the appellant did not have qualifying military service to be eligible for VA benefits including entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. In June 2010, the Veteran testified at a Travel Board hearing at the Los Angeles, California RO, before the undersigned Veterans Law Judge. 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). FINDING OF FACT The service department verified that the appellant did not have 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 does not have recognized active military service for the purpose of eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Under the recently enacted American Recovery and Reinvestment Act, 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 § 1002, Pub. L. 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 addresses 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 the enactment of this 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 January 1997, and in March 2007, the U.S. Army Reserve Personnel Center and the National Personnel Records Center (NPRC), respectively, 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. 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 various documents submitted by the appellant, including Certifications from the Office of Adjutant General and various documents from the Philippine Army, etc., 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, those 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 acknowledges that at the hearing, the appellant submitted two documents for which he waived initial review by the RO. For the first document, an affidavit for the Philippine Army, the appellant claimed that such document was procured by his brother (who lives in the Philippines) from the "Service Records Center in St. Louis". He claims that his brother had the original document sent from St. Louis to the Philippines, and then he mailed the original to the appellant, who made this copy, and then sent the original back to his brother in the Philippines. The second document is a letter to the appellant from the Philippine Department of National Defense regarding payment of TAD pension to all living WWII veterans. However, neither of these documents satisfies 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. The appellant also has submitted documentation from the United States Department of State and United States Department of Justice, Immigration and Naturalization Service, a copy of his U.S. passport, and a copy of his State of California driver's license - all of which demonstrates that he is a United States citizen. These documents, however, do not establish qualifying service for purposes of legal entitlement to the one-time 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 applicant, who 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 a veteran for the purpose of establishing entitlement to VA benefits including the one-time payment from the Filipino Veterans Equity Compensation Fund. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. ORDER Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs