Citation Nr: 1301015 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-17 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The appellant contends that he had service with the U.S. Armed Forces, specifically including recognized guerilla service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 United States Armed Forces. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and therefore does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that it has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); 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, there is no further need to discuss the VCAA duties. The Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. The appellant seeks entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. See the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, section 1002. Section 1002(d) of that Act defines a person eligible for such a payment as 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. The essential question involved in this case is whether the appellant has the requisite military service. 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, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. 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 not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies their service. Soria, 118 F. 3d at 749. The appellant claims he is entitled to a one-time payment from the FVEC fund. In a written statement (VA Form 21-4138) dated in February 2009, the appellant indicated that he served in the U.S. Armed Forces from October 1943 to July 1945 as a guerilla with the 43rd Infantry Company "F," 2nd Battalion. In February 2009, the appellant filed his claim for legal entitlement to a one-time payment from the FVEC fund. He reported that he had recognized guerilla service with the 43rd Infantry Company "F," 2nd Battalion from October 5, 1943 to July 25, 1945. In November 2009 the Veteran submitted a March 1997 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General. This certification indicates that the appellant joined the Medical Company, 86th Infantry Regiment, Cebu AC. The unit's date of recognition was February 12, 1944, and its revised date of recognition was September 3, 1942. In November 2009 the appellant also submitted an affidavit along with an application for old age pension that he submitted to the Philippine Veterans Affairs Office in May 1991. The affidavit shows that the appellant stated that he served in "F" Company, 43rd Infantry, APO 718, Cogon, Opon, Cebu. It further reflects his description of the different units to which he was assigned, and the duties he was tasked with, between October 1943 and July 1945, when he was processed. Responses from the NPRC dated in September 2009 and February 2010 indicate 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. The Board observes that the appellant does not legally qualify for a one-time payment from the FVEC fund. As discussed above, the NPRC has specifically certified that 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 light of the above, the March 1997 certification from the Armed Forces of the Philippines (noted above) submitted by the appellant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certification is not an official document of the appropriate United States service department, and is without the official seal. The affidavit submitted by the appellant is also not an official document of the appropriate United States service department. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving VA benefits. Soria, 118 F.3d 747, 749 (Fed. Cir. 1997). In compliance with Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the RO sought certification of service from the service department two times. Additional evidence was not received from the appellant subsequent to the February 2010 NPRC certification; therefore, a third attempt at certification was not required. The Board finds that the appellant has received the due process to which he is entitled under Capellan. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (holding that recertification is required when there is newly received relevant evidence since the negative certification). In his VA Form-9 the appellant has referenced Almero v. INS, 18 F.3d.757 (9th Cir. 1994) and Serquina v. U.S., 19 F.3d 29 (9th Cir. 1994), to support his contention that VA must consider military records other than those at NPRC. (The Board notes that identical issues were raised in the above two mentioned cases, and they were consolidated for purposes of oral argument.) However, the U.S. Court of Appeals for the Federal Circuit specifically found that the statutory provision on which the 9th Circuit relied in Almero was specific to immigration and naturalization issues, and did not apply to such issues as veteran's status. Soria v. Brown, 118 F. 3d 747 (Fed. Cir. 1997). See also Fazon v. Brown, 9 Vet. App. 319 (1996) (distinguishing between veteran's status for purposed of naturalization and veteran's benefits). Thus, VA is bound only by the service department's certification with respect to the appellant's status as a veteran of the U.S. military. As to the appellant's contention that verification of his service may have been provided by records that were destroyed by the 1973 fire at the NPRC, it is the NPRC, as the representative of the service department, that indicated that its review of its records showed a lack of valid service, and it did not indicate that the records that would have indicated valid service were of the type that was destroyed in the fire. As the above regulations require the Board to rely on verification of service by the service department, the Board will also rely on the NPRC's implicit finding that there were no records relevant to this case that were likely destroyed in the 1973 fire. In sum, the NPRC has certified that the appellant had no qualifying 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 any claimant, 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. In this case, the service department has determined 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. 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). Because the appellant's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC fund, and the claim must be denied based upon a lack of entitlement under the law. ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation fund. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs