Citation Nr: 1111192 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 10-44 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. WITNESSES AT HEARING ON APPEAL Appellant and G.R. ATTORNEY FOR THE BOARD P. Sorisio, Counsel INTRODUCTION The Veteran had active military service from March 1939 to June 1946 in the Regular Army of the United States of America. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2009 letter determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The jurisdiction over the claims file is with the Oakland, California RO because the Veteran resides in California. The appellant was afforded a Travel Board hearing in February 2011 before the undersigned. A transcript of the testimony offered at this hearing has been associated with the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A NA Form 13038, Certification of Military Service, two WD AGO 53-55, Enlistment Record and Report of Separation, forms, and Certification of Military Service issued by the National Personnel Records Center in January 1980, all indicate that appellant was honorably discharged from the Regular Army of the United States. 2. The appellant is a Veteran of the Regular Army of the United States with his entire service having been provided in the Philippines. CONCLUSION OF LAW The appellant is not eligible to obtain the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 107, 501(a) (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act, Pub. L. No. 111-5, § 1002 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.6, 3.203, 3.40 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). VA's duties to assist and notify have been considered in this case. Since it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the 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. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund eligibility for nonservice-connected pension benefits is precluded based upon the Veteran's type of active military service in the Regular Army of the United States. Sabonis v. Brown, 6 Vet. App. 426 (1994). Legal Criteria and Analysis Under the 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." See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 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. In this case, the application was received within the one-year eligibility period, and therefore it was timely submitted. Additionally, section 1002(c)(2) provides that the application for the claim shall contain such information and evidence as the Secretary may require. Further, the section 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 served (1) 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 the 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 (2) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the section provides that an eligible person from either one of this categories of service must have been discharged or released from service under conditions other than dishonorable. Further, section 1002(i) provides that the service of a person as described in subsection (d) is recognized as active military service in the Armed Forces for purposes of, and to the extent provided in, this section. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2010). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). 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 (West 2002). Service in the Philippine Scouts (except that described in paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance with benefits that are payable in dollars at the full-dollar rate. 38 C.F.R. § 3.40(a) (2010). Section 3.40(b), titled Other Philippine Scouts, indicates that service of persons enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation and that with a few exceptions benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. Only service department records can establish if and when a person was serving on qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). After reviewing the record, the Board finds that the appellant is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund because he did not serve 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. See Pub. L. 111-5, § 1002(d). Rather, official documents of record indicate that the appellant actually served in the Regular Army of the United States. There are two WD AGO 53-55 forms of record. The first WD AGO 53-55 form indicates that the appellant served from March 18, 1939 to April 2, 1945. Box number 40 indicates that the appellant was honorably discharged at the convenience of the government to enlist in AUS (Army of the United States). The second WD AGO 53-55 form reflects that the appellant served from April 3, 1945 to June 30, 1946. Box number 55 on this form indicates that he was honorably discharged as temporary Corporal AUS. Additionally, a NA Form 13038 certifies that the appellant was a member of the Army of the United States from March 18, 1939, to April 2, 1945 and he was honorably discharged. This document reflects that it was given at St. Louis, Missouri on October 29, 1993 and it notes that it came from the National Personnel Records Center. Finally, a Certification of Military Service that was issued by the National Personnel Records Center in January 1980 indicates that both portions of the Veteran's periods of service were in the Regular Army of the United States. Accordingly, based on the foregoing official documents, the Board finds that appellant meets the requirements of 38 C.F.R. § 3.1 and must be considered a Veteran under that regulation. A WD AGO Form No. 21, dated and signed by the Veteran in March 1939 reflects that he enlisted as a private in the "Regular Army" of the United States. A WD AGO Form No. 22, dated in April 1945, reflects that the Veteran enlisted as corporal for the "AUS - Infantry" for service in the Army of the United States. A January 1946 service department record (Form 332 A) indicates that the Veteran was discharged from the Philippine Scouts (April 2, 1945) and that from April 15, 1942 to August 3, 1942 he was a prisoner of war (POW). All of the foregoing official service department records indicate that the Veteran served with the Army of the United States with the Regular or Old Philippine Scouts. As such, he did not serve in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 as noted in Section 1002(d)(1)(B). Indeed, the Veteran was an enlisted member of the Regular Army of the United States prior to the July 26, 1941 executive order of President Franklin D. Roosevelt and prior to the Armed Forces Voluntary Recruitment Act of 1945, which was approved October 6, 1945. Additionally, a March 1947 rating sheet reflects that service connection was awarded for limitation of motion of the lumbar spine, comparable to lumbago, mild. An April 1947 award of disability compensation letter reflects that the Veteran was awarded compensation as a "veteran of the Philippine Scouts (AUS [Army of the United States])." The record currently reflects that service connection is in effect for 6 disabilities - degenerative joint disease, lumbosacral spine; ischemic heart disease; posttraumatic stress disorder (PTSD); dysentery; residuals, shrapnel wound to left leg (below the knee); and residuals, shrapnel wound to right back. The record also reflects that a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities has been in effect from July 15, 1999. In conclusion, as the Veteran served in the Regular Army of the United States with the Regular or Old Philippine Scouts and not 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, or in the Philippine Scouts under § 14, he does not meet the requirement set forth by Congress in Section 1002 of Public Law 111-5 and is not entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. As discussed above, such benefits under the Filipino Veterans Equity Compensation Fund are considered to be "a complete release of any claim against the United States by reason of [the] service described in subsection (d)." See Section 1002(h)(1) of Public Law 111-5. These payments are intended to compensate Filipino veterans who are not otherwise considered to be "eligible persons" as defined in this Public Law for "damages for human suffering" and as a release from any future claims. The Veteran in this case, however, is a Veteran of the Regular Army of the United States and is, and has been for a long time, receiving monthly compensation benefits from VA. Accordingly, for all of the above reasons, the Veteran's service has already been recognized as active military service in the Armed Forces of the United States. Cf. Pub. L. 111-5, § 1002(i) (recognizing the service of a person as described in subsection (d) as active military service in the Armed Forces for purposes of, and to the extent provided in, this section). Consequently, he is not entitled to the one-time payment under the Filipino Veterans Equity Compensation Fund. Rather, he is entitled to the disability benefits he is already receiving from VA based on his recognized service in the Regular Army of the United States. ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ Richard C. Thrasher Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs