Citation Nr: 1300314 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-42 815 ) 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 Michael J. Skaltsounis, Senior Counsel INTRODUCTION The appellant is the surviving spouse of M.R.M., whom she claims had qualifying service, including guerilla service, from November 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Manila, The Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). 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) certified the appellant's spouse had no service as a member of the Philippine Commonwealth Army (including recognized guerrillas) in service of the Armed Forces of the United States. CONCLUSION OF LAW The appellant's spouse did not have recognized active military service a required to establish her eligibility for FVEC Fund benefits. 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 The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In this case, the determinative matter at issue involves whether the appellant's spouse has qualifying service for a one-time payment from the FVEC Fund. When the law, and not the underlying facts or development of the facts, is dispositive in a matter, the VCAA can have no effect on the appeal. Mason v. Principi, 16 Vet. App. 129, 132 (2002) (where the law as mandated by statue, and not the evidence, is dispositive, the VCAA is not applicable); Smith v. Gober, 14 Vet. App. 227 (2000); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, the Board finds that the VCAA is not applicable in the present appeal. The appellant seeks a one-time payment from the FVEC Fund based on her spouse's service under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009), which she may pursue for accrued benefits purposes because her spouse died after the promulgation of this benefit. However, in order to qualify for the benefit, there must still be affirmative evidence that the claimant's spouse was a "veteran" for the purpose of benefits administered by VA, which requires qualifying military service. In Section 1002(d) of the statute, an eligible person has qualifying service if he 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, including among such military forces organized guerrilla forces, and was discharged or released from service under conditions other than dishonorable. For the purpose of establishing evidence of service, 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: The evidence is a document issued by the service department; and the document contains needed information as to length, time and character of service; and in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, VA will request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that the findings of the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530 (1992). In this case, the appellant alleges qualifying service in the Commonwealth Army of the Philippines in service of the Armed Forces of the United States (USAFFE), including in the recognized guerilla forces in service of the Armed Forces of the United States. Specifically, she asserts that her spouse served in the USAFFE with the "29th MP Co. PA" from November 1943 to April 1946, to include service with the Hunters ROTC Guerrillas. In support of her claim, she submitted an April 1946 Affidavit for Philippine Army Personnel, and an Application for Old Age Pension using a form produced by the Philippine government. Thereafter, in a report dated in October 2009, the NPRC certified that the appellant's spouse had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The Board notes that there is no assertion by appellant that the request for the certification did not contain the correct name of appellant's spouse. Also, the Board notes that the above-noted affidavit was attached to the request and included a specific list of the assignments of the appellant's spouse during service, including his assignment with the Hunters ROTC Guerrillas. Based upon the evidence of record, the Board finds that the documents of record fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The records submitted by the appellant in support of her claim are not official documents of the appropriate United States service department and 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 FVEC Fund. The relevant provisions of the law and regulations in regard to determining the appellant's eligibility for FVEC Fund benefits under the American Recovery and Reinvestment Act have been adequately considered. For the purpose of ascertaining whether a claimant or her spouse has the requisite military service the provisions of 38 C.F.R. § 3.203 have been followed. The submitted evidence does not constitute evidence issued by a service department of the United States military. The appellant has provided no further evidence that would warrant a request for recertification from the service department. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification is necessary with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification is necessary when there is newly received relevant evidence since the negative certification). Although the appellant asserted that the lack of certification by the service department is due to the fire that occurred in 1973, there is no indication from the NPRC that the lack of any documentation was the result of the fire in 1973, and the record otherwise contains no evidence that this was the case other than the unsubstantiated contention of appellant, who has apparently reached this conclusion solely based on the fact that the Philippine government verifies the requisite service and that therefore the corresponding United States records must have been destroyed. The law, however, is clear that there must be affirmative evidence from the service department that the claimant's spouse was a "veteran" for the purpose of establishing entitlement to benefits administered by VA. Accordingly, the Board finds that the appellant is not legally entitled to compensation from the FVEC Fund under Section 1002 of the American Recovery and Reinvestment Act, Pub. L. No. 111-5. As there is no legal basis to substantiate the claim, it must be denied. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (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