Citation Nr: 1222809 Decision Date: 06/29/12 Archive Date: 07/10/12 DOCKET NO. 10-32 330 ) 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. WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD A. P. Simpson, 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 personal hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 does 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 & Supp. 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 1944 to 1946. He asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 many of those served in the Philippine Islands during World War II 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 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 a one-time payment to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (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 (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. Pub. L. No. 111-5, 123 Stat. 115 (2009). 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 a claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). The appellant has submitted documents to support his contention that he served as a recognized guerilla after January 1943. Those documents include an Affidavit for Philippine Army Personnel; a document entitled "Certification;" a document from the Armed Forces of the Philippines, dated February 1967; a copy of an "Application for Old Age Pension;" photocopies of identification documents; a document from the Philippine Veterans Affairs Office, and a document indicating that it cannot issue a certified copy of the Veteran's birth certificate because all pre-war civil registry records were lost or destroyed during the Japanese Occupation. None of those documents is a United States service department document indicating qualifying service. 38 C.F.R. § 3.203 (2011). At the time the appellant submitted his claim, he submitted some of the records listed above. The RO contacted the service department and requested verification of the appellant's alleged service. A November 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. 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. There was a previous certification from NPRC in December 2001 that the Veteran 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 the appellant's notice of disagreement, received in February 2010, he requested that VA verify the service under a different last name and attached a document that showed that last name as being "in the Approved Revised Reconstructed Grla Roster." A June 2010 response from the 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. The RO continued its determination that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, continued to deny his claim by issuing a statement of the case. In his subsequent appeal, the appellant alleges that he served in the Philippine Guerilla. At the April 2012 hearing before the undersigned, the appellant testified that he entered service in January 1943 with the Bulacan Military Area, 1st Battalion in the Buena Vista Regiment, and stayed in that regiment until 1967. The appellant reported he had no wounds or injuries during his service. The NPRC has duly considered the appellant's application for VA benefits and certified 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 service department does not verify the claimed service, the applicant's only recourse lies within the service department, not with VA). 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 & Supp. 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