Citation Nr: 1200348	
Decision Date: 01/05/12    Archive Date: 01/13/12

DOCKET NO.  10-30 536	)	DATE
	)
	)

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


THE ISSUE

Eligibility for legal entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund. 



ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

In connection with his claim for payment from the Filipino Veterans Equity Compensation Fund, the appellant claims service with the organized military forces of the Government of the Commonwealth of the Philippines from April 1945 to April 1975.  

This case comes before the on appeal from a January 2010 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) (2011).  38 U.S.C.A. § 7107(a)(2).  


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 the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2011), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2011). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2011). 

Congress, in enacting the VCAA, 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.  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.  Legal Criteria/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."  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 (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.  Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. 

In November 2009 and, after receipt of certificates submitted by the Appellant reflecting completion of courses purported to be under the auspices the Joint U.S. Military Advisory Group, in October 2010, the 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.  

The appellant did submit a number of other documents which he contends show that he had service in the United States Armed Forces in addition to the certificates from the training referenced above, to include photocopies of a voter's identification card, a patient's identification card from the Philippine Veteran's Memorial Hospital, and an Armed Forces Retire identification card; an application for benefits from the Philippine Veterans Affairs Office based on his asserted status as a Philippine veteran; and records of service pertaining to the appellant from the "Headquarters Philippine Constabulary" of the Republic of the Philippines at Camp Crame, Quezon City and the "General Headquarters" of the Armed Forces of the Philippines at Camp General Emilio Aguinaldo, Quezon City.  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 documenting such service of the appropriate United States service department.  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 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). 

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. 


____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs