Citation Nr: 1220652	
Decision Date: 06/13/12    Archive Date: 06/22/12

DOCKET NO.  10-47 133	)	DATE
	)
	)

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


THE ISSUE

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel





INTRODUCTION

This matter comes before the Board of Veterans' Appeals  (Board) from a May 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.

In April 2012, the appellant was afforded a Travel Board hearing before the undersigned Veterans Law Judge. 

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 service department 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 during World War II.


CONCLUSION OF LAW

The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002 & 2011); 38 C.F.R. § 3.203 (2011); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant, in written statements and testimony before the Board, contends that he had recognized guerrilla service in the Philippine Commonwealth Army, from 1943 to 1946.  Therefore, he asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. 

By way of history, the Board notes that the Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that the majority of those served in the above units did not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002).

The particular benefit claimed in the instant case originated on February 17, 2009, with the American Recovery and Reinvestment Act to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which is charged with providing one-time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).

An eligible person is defined as any person who served 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 dated July 26, 1941.  That includes any person who served in military units such as 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).

The Act further directs VA to administer the provisions of this section in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. 

Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA.  38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department, (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2011).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b) (2011). 

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2011).

Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for Veterans' benefits based on that service.  Soria v. Brown, 118 Fed. 3d 747 (Fed. Cir. 1997). 

In this case, the appellant has submitted multiple documents purporting to show that he served as a recognized guerilla with B Company, 31st Infantry Battalion, 31st Infantry Regiment, Marking's Fil-American Guerillas from October 30, 1943, until February 8, 1946.  Those documents include a certificate showing the appellant to have a savings account with Landbank, with a notation indicating the account to be related to pension from the Philippine Veterans Affairs Office; a February 8, 1946 certificate showing that the appellant had honorable service with the Philippine Army; and copies of identification cards from the Republic of the Philippines Office of Senior Citizens Affairs and the Republic of Philippines Commission on Elections.  None of those documents was a United States service department document indicating qualifying service.

Upon receipt of the above documents, the RO contacted the service department and requested verification of the appellant's alleged service.  In the request, the RO included the information the appellant had provided in support of his claim.  However, a December 2009 response from the National Personnel Records Center (NPRC) indicated that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.  In March 2010, the RO submitted another request for verification of the appellant's alleged service with additional information regarding the appellant's possible unit of assignment.  However, an April 2010 response from the NPRC again indicated that the appellant did not have qualifying service.  Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, denied his claim. 

In his subsequent appeal, the appellant submitted a June 2010 lay statement attesting to his service with the United States Armed Forces.  In August 2010, the RO submitted another request for verification of the appellant's alleged service with alternate forms of the appellant's name and unit of assignment.  However, a September 2010 response from the NPRC confirmed that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.   

The appellant has also submitted Board testimony contesting the RO's decision and attesting to his service as a private and guard in the recognized guerillas.  However, none of that newly submitted lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  On the contrary, that new evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. 

In any event, the Board observes that the NPRC has duly considered the appellant's application for VA benefits and certified on three separate occasions that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not with VA).

For the foregoing reasons, the Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, his claim for benefits must be denied. 

In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the Filipino Veterans Equity Compensation Fund.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2011); Harvey v. Brown, 6 Vet. App. 416 (1994).

Finally, the Board observes that the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter. 38 U.S.C.A. § 5103A  (West 2002 & 2011); Manning v. Principi, 16 Vet. App. 534 (2002).


ORDER

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



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs