Citation Nr: 1300465	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  10-31 632A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
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

C. L. Wasser, Counsel


INTRODUCTION

The appellant alleges that he had service from January 1943 to April 1946 in the recognized guerrillas, to qualify him for recognized service in the United States Armed Forces, Far East (USAFFE).

This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 decision by the RO in Manila, the Republic of the Philippines, which determined he did not have qualifying service to be eligible for the one-time payment from the FVEC Fund.

Please note 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 appellant does not have recognized active military service for the purpose of receiving the one-time payment from the FVEC Fund.  38 U.S.C.A. § 501(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

Since the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) do not apply.  See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated.  See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See, also, VAOPGCPREC 5-2004 (June 23, 2004).  Thus, no amount of notice or assistance would be of any tangible benefit.

The appellant asserts that he served as a recognized guerrilla during World War II as a member of "Vinzon's Div. Turkos Command."  He has submitted a photocopy of a February 2000 Confirmation of Military Service, from the Philippine Military Service Board, Department of National Defense showing that he rendered honorable military service during World War II and is conferred full military veteran status.  He also submitted photocopies of a January 2001 certificate from the Philippine Military Service Board, Department of National Defense, showing he is a confirmed military veteran.  He submitted a photocopy of an August 2010 certificate from the Philippine Veterans Affairs Office, showing that he is a veteran of "Philippine Revolution/Wold [sic] War II/" who served with Vinzon's Turkos Command, and receives old age pension.  

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

Section 1002 addresses Payments to Eligible Persons Who Served in the U. S. Armed Forces in the Far East during World War II.  Section 1002(c)(1) provides that the Secretary may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of this Act, submits to the Secretary a claim for benefits under this section.  The application for the claim shall contain such information and evidence as the Secretary may require. 

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. 

In cases for VA benefits where the requisite Veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA.  See 38 C.F.R. § 3.203(c), Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F. 3d at 749.  In short, under 38 C.F.R. § 3.203, a claimant is ineligible for VA benefits based on Philippine service unless a United States service department documents or certifies his or her service.  Soria, 118 F. 3d at 749.

Here, the NPRC has declined to certify the appellant's alleged service on two separate occasions.  In January 2010 and January 2011 responses, the NPRC indicated he "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces."  Detailed information regarding the dates, locations, and units of his alleged service were submitted and reviewed, and all identifying information, such as date of birth, parentage, and place of birth, were also considered.  All information submitted by him has been referred to the NPRC for review.  Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008).

He contends that he did indeed have the requisite service as a Filipino guerrilla during World War II.  Unfortunately, where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The lack of certification from the NPRC is binding on VA over the submitted certifications from the Philippine Department of National Defense, dated in February 2000 and January 2001.


ORDER


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



____________________________________________
S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs