Citation Nr: 1300159	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  10-34 605	)	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.  


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  

Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  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 the recognized guerrillas, in the service of the Armed Forces of the United States.


CONCLUSION OF LAW

The service requirements for eligibility for a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
The United States 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 will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens.  The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code.

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 this Act.

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.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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 the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

Historically, in September 1990, the appellant filed an original claim for VA pension benefits based upon service with the Philippine Army from August 1941 to January 1946.  Rather than addressing the merits of the claim, the RO issued an October 1990 administrative finding that the appellant did not have recognized old Philippine Scout service so as to be eligible for pension benefits.  

Thereafter, a February 1991 certification from the National Personnel Records Center (NPRC) found the appellant had no service as a member of the Philippine Commonwealth Army including the recognized guerillas in the service of the United States Armed Forces.
The appellant attempted to reopen his claim for pension benefits in August 2005, and was informed by the RO in an August 2005 letter that pension was not payable based on his service as a former Philippine Commonwealth Army member.  He submitted another statement in November 2005 and requested reconsideration of his pension claim.  The RO sent him another letter in December 2005 reiterating that he was not eligible for pension benefits based on his reported service.

Thereafter, in February 2009, the appellant submitted a new claim for entitlement to a one-time payment from the FVEC Fund.  He asserted that he had served with the 61st Division in the Philippine Army from September 1941 to July 1945.  He stated that his service number was [redacted].  

In support of his claim, the appellant submitted a card indicating he was a Life Member in the Veterans Federation of the Philippines; a certification from the Philippine Veterans Affairs Office, Ministry of National Defense, Republic of the Philippines, which stated that the appellant served as a private first class with the 61st Division in the Philippine Army; a June 1937 document of the Philippine Army indicating he had completed trainee instruction; and an affidavit for Philippine Army personnel indicating that he served in the USAFFE from September 1941 to July 1945.  

A certification from the NPRC dated in October 2009 shows 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.  

In January 2010, the RO denied the appellant's FVEC claim because he had not established basic eligibility based on valid military service.  In March 2010 the appellant reported that he had no additional documentation to submit.

The Board concludes that entitlement to a one-time payment from the FVEC Fund is not warranted because the appellant does not have qualifying military service as a matter of law.  The NPRC has certified twice in the record that the appellant did not have the requisite qualifying service.  

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).  All of the documents submitted by the appellant 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.  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 compensation from the FVEC Fund.

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 department 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 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.  As such, 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, 430 (1994).  


ORDER

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



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs