Citation Nr: 1220060	
Decision Date: 06/07/12    Archive Date: 06/20/12

DOCKET NO.  10-46 775	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

Appellant served in the military of the Republic of the Philippines. 

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the RO in Manila, the Republic of the Philippines.

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).


FINDINGS OF FACT

1.  There is no dispute as to the facts pertinent to resolution of this appeal.

2.  The appellant had no recognized service as a member of the Philippine Commonwealth Army, including the recognized guerillas in the service of the United States Armed Forces, to qualify for a one-time payment from the FVEC Fund.


CONCLUSION OF LAW

The claim for a one-time payment from the FVEC Fund lacks legal merit.  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 FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011).  

In some cases, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also 38 C.F.R. § 3.159(b)(3)(ii) (2011) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).  Here, as discussed below, there is no dispute as to the pertinent facts, such as the name or unit of service for the appellant.  The appellant has not made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  

Pursuant to both 38 C.F.R. § 3.203(c) and VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review.  See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).  The RO has submitted all pertinent identifying information for verification to the National Personnel Records Center (NPRC).  The Board finds that there is no further assistance that would reasonably be expected to aid in deciding the claim.  Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including under the FVEC Fund.  

Analysis of Eligibility for FVEC Fund One-Time Payment

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 (FVEC).  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."  Nothing in the 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(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 (New) Philippine Scout under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538), Public Law 190, 79th Congress; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.

Qualifying service for a one-time payment from the FEVC Fund can only be demonstrated by specific documentary evidence.  38 C.F.R. § 3.203(a) (2011).  This evidence includes official U.S. Department of Defense service documents, such as a Form DD 214, Certificate of Release or Discharge from Active Duty.  Id.  Where a claimant does not submit satisfactory proof of qualifying service, VA is required to seek U.S. service department verification of service before rendering a decision.  Capellan, 539 F.3d at 1380.  

Documents submitted by the appellant include a certification from the General Headquarters of the Armed Forces of the Philippines, dated in March 1996, that the appellant served in the Mt. Sierra Rgt (F-23) in the status of Grla; a roster of the 86th Division Demobilization, which lists the appellant as a corporal; a discharge from the Army of the Commonwealth of the Philippines, which shows that the appellant was honorably discharged on January 20, 1943 from service in the HQ. PLTN. HQ. CO. 1st BN MT Sierra REGT; and an Affidavit of Philippines Army Personnel, which shows that the appellant served as a civilian guerilla in the "HQ" Co. 1st BN. Mt. 

Sierra Rgt.  The RO submitted the appellant's service information to the NPRC in October 2009, and the record contains a certification in November 2009 from the NPRC 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.  Subsequent to the RO's denial of the claim, the RO submitted the appellant's information to the NPRC three additional times and received certification in February 2011, July 2011, and January 2012, 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's assertions regarding the claim center on the service information set out above.  In essence, he contends that this service ought to be sufficient to meet eligibility requirements for a one-time payment from the FEVC Fund.  The Board reiterates that the information provided by the appellant was forwarded to NPRC.  The fact of the appellant's wartime service is not in doubt; however, the NPRC has certified that he did not have the requisite service for FVEC entitlement.  Philippine veterans are not eligible for VA benefits unless a United States service department documents or certifies their service.  See Soria, v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); 38 C.F.R. § 3.9 (2011).  

The appellant has suggested that his records were destroyed in a fire at the NPRC in 1973; however, the NPRC did not indicate that this was the case, and the Board finds that this assertion is simply speculation on the Veteran's part.  In fact, the NPRC's response as to the service of the appellant was unequivocal.  The NPRC 

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 Board finds that, as the requisite service is not shown, a one-time payment from the FEVC Fund is not warranted.	


ORDER

The appeal as to entitlement to a one-time payment from the FEVC Fund is denied.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs