Citation Nr: 1144729	
Decision Date: 12/07/11    Archive Date: 12/14/11

DOCKET NO.  09-49 657	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

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

The appellant alleges that he had service which qualifies him for recognized service with the U.S. Armed Forces, Far East (USAFFE), or as a recognized guerrilla in the Philippines during World War II.  A Board video conference hearing was requested and scheduled, but the appellant failed to report for such hearing as he could no longer walk and was too weak to travel.  The Veteran's daughter, who had been given Special Power of Attorney to appear and represent her father, as well as another daughter, appeared at an RO hearing.  An Informal Conference Report is of record.  In November 2011, the appellant was contacted and asked if the hearing on October 6, 2011 satisfied his request for a travel board hearing.  The appellant passed the phone to his daughter because he could hardly hear, and gave his consent to discuss with his daughter the matters concerning his appeal.  The appellant's daughter stated that the hearing fully satisfied the travel board hearing requested because the appellant could no longer travel due to his weak physical state. 
 
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING 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 one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

The Board may proceed with the issue on appeal at this time without reviewing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2011).  The United States Court of Appeals for Veterans Claims has held that, in a case where the law is dispositive of the claim, the claim should be denied for lack of legal merit under the law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  That court has also held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive in the matter.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).

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 benefit 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, 6 Vet. App. at 430 (1994).

Under the American Recovery and Reinvestment Act, a 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). 

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 . . . ."  Nothing in this act, however, "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.

VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the United States Armed Forces.  Service department findings, therefore, are binding on VA for purposes of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

In the appellant's original claim, he stated that he served from December 13, 1941, to March 18, 1947, in A Company, 3rd Battalion.

In May 2009, the RO received from the National Personnel Records Center (NPRC) information indicating 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. 

In August 2009, the appellant submitted a Statement in Support of Claim in which he indicated that he was a Private, 88th MP Company.  In addition, the appellant submitted a September 1990 Application for Old Age Pension indicating that the appellant was a Private in the Philippine Army USAFFE and Guerrilla during the Mindanao Campaign and that his last assignment was with the 88th MP Company.

The RO submitted an additional verification request to the NPRC in February 2010.  The NPRC responded 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. 

Ultimately, the sole determinative question of fact in this case is whether the appellant had recognized service to qualify for the claimed one-time payment from the Filipino Veterans Equity Compensation Fund. 

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 Philippine documents submitted by the appellant 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.  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 must rely upon the relevant official determination of recognized service or no recognized service from the service department, provided in response to RO queries as to whether the appellant had recognized service.  The responses received from the NPRC, most recently in February 2010, verify that the appellant had no recognized service.  This official finding of no service is determinative, and VA has no authority to change or amend the findings.  Duro, 2 Vet App. At 532 (1992).

The United States Court of Appeals for Veterans Claims (Court) has held that VA may accept United States service department documents or seek certification of service, but once certification is received, VA is bound by that certification.  See Palor v. Nicholson, 21 Vet. App. 325 (2007), reconsideration of 21 Vet. App. 202 (2007) (citing Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997)).  The proper course for an appellant 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.  Id.  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.

In light of the findings of the NPRC, a component of the appropriate United States service department, which are binding on VA for the purpose of establishing service in the U. S. Armed Forces, the appellant has no qualifying service in the United States Armed Forces and he is not a "veteran" for the purpose of establishing eligibility for the Filipino Veterans Equity Compensation Fund benefit administered by the United States Department of Veterans Affairs.

In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied.  Sabonis, 6 Vet. App. at 426.


ORDER

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



____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs