Citation Nr: 1237177 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-31 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for one-time payment from the Filipino Veterans Equity Compensation Fund. 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 had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla in the service of the Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2010); 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 The President of the United States signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, authorizing the release of a one-time, lump-sum payment to eligible WWII Philippine veterans. These payments are to be made through the U.S. Department of Veterans Affairs. American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). In this case, information obtained from the NPRC in November 2009 shows that the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The appellant submitted an Affidavit for Philippine Army Personnel, as well as a Certification from the Armed Forces of the Philippines and documentation from the Philippine Veteran Affairs Office showing that the Veteran is considered a veteran by the government of the Republic of the Philippines. The appellant also submitted his own statements indicating that he was part of the Pillar of the Chaplain Service, 61st Division, in Passi, Ilolio under Lt. Celso Pasiderio from October 1942 to December 1945, which he hoped would be recognized as guerilla service of the Armed Forces of the United States. The appellant also submitted an affidavit from his brother-in-law noting his claimed service and an affidavit from D. P. indicating that he knew that the appellant served as a guerilla on October 23, 1942, and that he was assigned to Chaplain C. P., Division 61st, Passi, Iloilo, Philippines. The Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government and statements from lay individuals whose recollections are not supported by official findings. As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the Filipino Veterans Equity Compensation Fund. 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 United States Armed Forces. This 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 proper course for the appellant, who 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. 80, 85 (1994). Recognition of service by the Philippine government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA. This agency is bound to follow the certifications by the service departments with jurisdiction over United States military records. Based upon the record in this case, the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. The appellant may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law and VA has no further duty to notify or assist the appellant in this matter. ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs