Citation Nr: 1224366	
Decision Date: 07/13/12    Archive Date: 07/18/12

DOCKET NO.  11-02 914	)	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 (FVEC) Fund.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO).

The Veteran was afforded a hearing before a decision review officer (DRO) in June 2010.  A copy of the transcript has been associated with the claims file.

In April 2012, a hearing was held at the RO before the undersigned Acting Veterans Law Judge (AVLJ).  A transcript of the hearing is associated with the claims file.  The Board notes that the Veteran's representative was not present for the hearing.  See Board Hearing Transcript at 2.  However, the Veteran expressed a desire to proceed with the scheduled hearing and present his testimony without representation.  

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 National Personnel Records Center (NPRC) has certified that the appellant    did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.


CONCLUSION OF LAW

The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met.  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 FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  As the law is dispositive in the instant claim, the VCAA is not applicable.

II. Analysis

The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits).  Payments for eligible persons total either $9,000 (for non-United States citizens) or $15,000 (for United States citizens).

For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service.  However, nothing in the act prohibits 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 the Act.

Section 1002(d) defines an eligible person as (1) any person who served either (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.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains pertinent information as to length, time and character of service; and (3) in VA's opinion,   the document is genuine and contains accurate information.  38 C.F.R. § 3.203(a) (2011).

Where service department certification is required, findings by the service department verifying a person's service are binding on VA.  See, e.g., Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  The proper course for an 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. (1994), overruled on other grounds, D'Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for VA benefits.

The appellant contends that he served as a messenger with the Castaneda Fil-American Cavite Guerilla Force (FACGF) Unit of Desmarinas from January 3, 1943 to September 27, 1945.  In support of his claim, the appellant submitted a copy of a document issued by the Philippines Veterans Affairs Office (PVAO) certifying that the appellant is a veteran of World War II/Philippine Revolution, who served as Corporal with the Castaneda FACGF.  This office awarded the appellant old age pension based on his status as a "Deserving Guerilla."   Additionally, the appellant submitted various identification cards and a Certificate of Naturalization; and an affidavit from P.C. and C.M, two friends of the appellant, who indicated that the appellant was a recognized guerilla.  

The Manila RO found that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at their site.  See February 2010 VA Form 21-3101 (JF).

Additionally, in March 2010, the NPRC reported that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 

The documents submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as these are not official documents of the appropriate United States service department.  

More importantly, 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 USAFFE. This verification is binding on VA such that VA has no authority to change or amend the finding.  See Duro, 2 Vet. App. at 532.

The Board acknowledges the Veteran's contention that his name is not on the NPRC list because he was a minor at the time he served as a recognized guerilla.  See Board Hearing Transcript at 11.  In addition, the Veteran's representative has stated that the list prepared for the NPRC omitted 2,000 names as it was prepared in a hurry.  See June 2012 Informal Hearing Presentation.  However, these contentions are outweighed by the service department's findings, which fail to show a threshold eligibility and as discussed above are binding on VA in this matter.     

The Board also acknowledges the appellant's contention that the Immigration and Naturalization Service (INS) has recognized his service as qualifying for their purposes, but reminds the appellant that the laws and regulations pertinent to VA and INS claims are different.  While documents certified by the Philippine government may be sufficient to qualify one for naturalization in the United States, they are not sufficient to establish the appellant's entitlement to the one-time payment at issue in this case. 

Based upon the record in this case, the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Veteran status is a prerequisite to entitlement to payment from the FVEC Fund.  Therefore, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to a one-time payment from the FVEC Fund is denied.




____________________________________________
REBECCA N. POULSON
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs