Citation Nr: 1209388 Decision Date: 03/13/12 Archive Date: 03/28/12 DOCKET NO. 10-46 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service during World War II in the Regular Philippine Scouts and in the Army of the United States. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Manila, Philippines, RO, dated in March 2010. In January 2012, he appeared at a Board videoconference hearing. 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 Veteran's military service was in the U.S. Army and the Regular Philippine Scouts; he had no qualifying 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 Veteran's active military service does not qualify him for the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (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. §§ 3.40, 3.41, 3.203 (2011). REASONS AND BASES FOR FINDING 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2011). The question currently before the Board is whether the Veteran has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Where, as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. 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). Nonetheless, the Board notes that the RO provided the Veteran and his representative with a copy of the September 2010 Statement of the Case (SOC), which included a discussion of the facts of the claim, the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. The appellant has also had a meaningful opportunity to participate in the processing of his claim. The Board consequently finds that he has not been prejudiced by VA's failure to notify him of the allocation of evidence-gathering responsibilities in this case. As to VA's duty to assist the Veteran, at his Board videoconference hearing, it was indicated that the Veteran would be submitting articles, which he felt showed that he was entitled to the one-time payment. These articles were received at the Board in February 2012, accompanied by a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. Included in this additional evidence was the first page of a of a "Fact Sheet" provided by VA, Office of Public Affairs, Medial Relations, dated in April 2008, and entitled "VA Benefits for Filipino Veterans." The remainder of this four-page "Fact Sheet" was not submitted by the Veteran. The Board assumes, however, that the Veteran had access to the remainder of the "Fact Sheet," and, in any event, the "Fact Sheet" itself does not have the force of law, but, rather, is simply an explanation for the public of the history of veterans benefits for World War II Filipino veterans up to the date of the "Fact Sheet," which was prior to the American Recovery and Reinvestment Act of 2009, which authorized the "Filipino Veterans Equity Compensation Fund." Thus, the Veteran is not prejudiced by the Board's referral to the "Fact Sheet" as a whole. In this regard, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law; as such, the notice and duty to assist provisions of the law are inapplicable. See Manning v. Principi, 16 Vet.App. 534 (2002). The Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 . . . ." 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 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. Over the years, the Veteran has had different periods of service verified. In his initial claim for VA compensation, signed in September 1946, he stated that he had been in the Philippine Scouts from February 21, 1941, to April 7, 1945, and in the Army of the United States (AUS) from April 8, 1945, to June 30, 1946. Concerning where he had spent the time of the Japanese occupation, he said that from April 26, 1942, to April 3, 1945, he was at a location he elsewhere identified as his home address. According to a separation document, WD AGO Form 53-55, he served as a Philippine Scout from February 21, 1941, to April 7, 1945. He was discharged to enlist in the AUS. This document also noted that he had "never" been a Japanese prisoner of war (POW). Another WD AGO Form 53-55 reflected his service in the AUS from April 8, 1945, to June 30, 1946. This document also showed his previous Philippine Scout service. A U.S. Army verification of his service in August 1949 noted that he served in the Philippine Scouts from February 21, 1941, to April 9, 1942. It was noted that he had no POW status, and that he was not under military control from April 10, 1942, to April 2, 1945. In July 1954, the RO received verification of the Veteran's active service from April 8, 1945, to June 30, 1946; according to this document, he had prior active service, having enlisted on February 21, 1941, and been discharged on April 7, 1946. In an April 2003 claim for VA compensation, the Veteran said he had been a POW. He said that he had been confined from April 9, 1942, to July 1942. He said he had been on the "Bataan Death March." In March 2003, he submitted a copy of the WD AGO From 53-55, which verified his Philippine Scout service from February 21, 1941, to April 7, 1945. In addition to a changed date of birth, the previously typed "Jap. P. O. W. Never" had been changed to a handwritten "yes" in the space previously occupied by the typed word "Never." Nevertheless, in December 2009, the RO received, in response to a PIES request, a statement that records indicated that the Veteran was a POW from May 7, 1942, to April 4, 1945, at an unknown location. (A birth certificate, however, shows that a child of his was born on November [redacted], 1943.) Based on this information, he was granted service connection for cerebrovascular accident residuals, as a disease presumptively associated with his POW status. Currently, he is in receipt of a 100 percent schedular rating for such residuals, as well as special monthly compensation due to the need for the aid and attendance of another person. Despite these variables, the key facts are not in dispute. It is undisputed that the Veteran's entire period of service was in either the Philippine Scouts or the AUS. In this regard, if a former POW was in the Philippine Scouts at the time of his capture, this status continues throughout the period of captivity. 38 C.F.R. § 3.41(b). Moreover, his period in the Philippine Scouts, from February 1941 to April 1945, was in the Regular Philippine Scouts, rather than the "new" Philippine Scouts, which were authorized under section 14 of the Armed Forces Voluntary Recruitment Act of 1945. His later period of service was in the AUS, not in the Philippine Commonwealth Army. At his Board hearing in January 2012, the Veteran testified that he was submitting additional documentary evidence which would establish his entitlement to the one-time payment. This evidence consisted of various notifications to the public of the Filipino Veterans Equity Bill, and which stated generally that persons who served before July 1, 1946, in the organized 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, were eligible for the one-time payment. Also submitted was the first page of a "Fact Sheet" provided by VA, dated in April 2008, and entitled "VA Benefits for Filipino Veterans." Although dated prior to the enactment of the Equity Bill, this document provides a clear explanation of the various types of World War II Philippine service, as well as background to the reasons that the Equity Fund was established. According to the page of the "Fact Sheet" submitted by the Veteran, "[t]he Philippine Islands gained their independence from the United States in 1946 following a transition period that was interrupted by World War II." The fact sheet went on to describe the four types of military service provided by Filipino veterans, which qualified for some VA benefits, as follows: • Regular, or "Old," Philippine Scouts. Regular Philippine Scouts, or "old scouts," were members of a small, regular component of the U.S. Army that was considered to be in regular active service. Originally formed in 1901, long before any formal plan for Philippine independence, the Regular Philippine Scouts were part of the U.S. Army throughout their existence. • Commonwealth Army of the Philippines. Also known as the Philippine Commonwealth Army, these veterans were called into the service of the United States Armed Forces of the Far East (USAFFE), its members serving between July 26, 1941, and June 30, 1946. • Guerrilla Service. People in this group served as guerrillas in USAFFE in resistance units recognized by and cooperating with U.S. forces between April 20, 1942, and June 30, 1946. • New Philippine Scouts. New Philippine Scouts were Philippine citizens who served with the U.S. Armed Forces with the consent of the Philippine government between Oct. 6, 1945, and June 30, 1947. In providing for the Filipino Veterans Equity Compensation Fund, Congress specifically found that: (3) The regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East on July 26, 1941, by an executive order of President Franklin D. Roosevelt. (4) Even after hostilities had ceased, wartime service of the new Philippine Scouts continued as a matter of law until the end of 1946, and the force gradually disbanded and was disestablished in 1950. (5) Filipino veterans who were granted benefits prior to the enactment of the so-called Rescissions Acts of 1946 (Public Laws 79-301 and 79-391) currently receive full benefits under laws administered by the Secretary of Veterans Affairs, but under section 107 of title 38, United States Code, the service of certain other Filipino veterans is deemed not to be active service for purposes of such laws. (6) These other Filipino veterans only receive certain benefits under title 38, United States Code, and, depending on where they legally reside, are paid such benefit amounts at reduced rates. American Recovery and Reinvestment Act of 2009 § 1002, Public Law No. 111-5 (enacted February 17, 2009) (emphasis added). Thus, the purpose of the Filipino Veterans Equity Compensation Fund is to provide a payment to those Filipino veterans who provided military service, but were entitled to fewer benefits, and at a lesser rate, than the Regular Philippine Scouts. As noted in the "Fact Sheet," "Filipino veterans who served with U.S. forces in the Regular Philippine Scouts before October 6, 1945, are entitled to all VA benefits under the same criteria as apply to any veteran of U.S. military service. Those benefits are paid at the full-dollar rate, and their dependents and survivors are entitled to benefits under the eligibility rules common to survivors of U.S. veterans." Thus, as a member a Regular Philippine Scouts, and of the AUS directly, rather than as part of the Philippine Army, the Veteran has been entitled to full VA benefits since his discharge from service, the same as all other U.S. military Veterans. In contrast, the Equity Fund seeks to narrow the gap between benefits authorized for those Filipino veterans who have not been entitled to the full panoply of VA benefits, and the other members of the military, including Philippine Scouts. The service department determination of service is binding on VA. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). Moreover, the Veteran does not contend that he has service, such as would qualify him for the one-time payment from the Filipino Veterans Equity Compensation Fund. Instead, he undisputedly had the type of service which, from the beginning, qualified him for full VA benefits, more than those the Fund was designed to compensate. To provide the one-time payment in this case to a Veteran who is already qualified for the same benefits as any other U.S. military veteran would be to create an inequity in the other direction. Moreover, based on his undisputed service, he does not, as a matter of law, qualify for the one-time payment from the Filipino Veterans Equity Compensation Fund. Because the disposition of this claim is based on the law, and not on any disputed facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application. ORDER Legal entitlement to the 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