Citation Nr: 1301026	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  11-18 607A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Legal entitlement to Department of Veterans Affairs (VA) benefits.  

2.  Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.



ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The appellant contends he served as a recognized guerrilla.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of April 2010 and December 2010 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund or the requisite military service to establish basic eligibility for VA benefits.

In April 2011, the appellant requested a hearing before a Decision Review Officer, and he was scheduled to appeal in June 2011.  The appellant contacted the RO in Manila and requested that his hearing be rescheduled, and he opted for an informal hearing conference.  This conference occurred on June 22, 2011, and a written description of the conference is associated with the claims file.  

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 service department 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 U.S. Armed Forces during World War II.


CONCLUSIONS OF LAW

1.  The appellant did not have the requisite service to render him basically eligible for VA benefits.  38 U.S.C.A. §§ 101, 107, 5107 (West 2002); C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012).

2.  The requirements for eligibility to a one-time payment from the FEVC fund are not met.  38 U.S.C.A. § 501(a) (West 2002); 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 CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise an appellant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist an appellant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. 

Because the current claim is limited to statutory interpretation, the notice provisions do not apply.  See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  Further, it involves a claim that cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).

VA has obtained certification from the service department relevant to the appellant's allegations of military service; he has submitted relevant service department and Philippine Veterans Affairs Office documents.  All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file.  The appellant has not contended otherwise.

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

The appellant seeks entitlement to the one-time FVEC payment and basic eligibility for VA benefit purposes. 

VA Compensation and Pension Benefits are payable to veterans who meet evidentiary/qualifying requirements.  38 U.S.C.A. §§ 1110, 1521.  

"Veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101; 38 C.F.R. § 3.1(d).  Recognized Philippine guerrilla service (under a commissioned U.S. officer or a commissioned officer of the Commonwealth Army, recognized by and cooperating with U.S. Forces) is qualifying service for VA compensation benefits.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40.  Service department certifications will be accepted as establishing both recognized guerrilla service and unrecognized guerrilla service (under a recognized commissioned officer, who was a former member of the U.S. Armed Forces or the Commonwealth Army).  38 C.F.R. § 3.40(d)(2).  The active service of members of the irregular forces guerilla will be the period certified by the service department.  38 C.F.R. § 3.41(d).  See also Duro v. Derwinski, 2 Vet. App. 530 (1992).

For purposes of establishing entitlement to VA benefits, 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 under 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 VA, the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).  When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c).

Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation 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 United States 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 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person.

Section 1002 (d) provides that an eligible person is any person who 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, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA.  See Duro, supra.  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.

In this case, the appellant contends that he served in recognized guerillas between January 1, 1943, and February 3, 1946, and should therefore be entitled to the FVEC payment and VA disability benefits.  

The RO submitted the pertinent information to the National Personnel Records Center (NPRC) for verification.  In January 2010, the NPRC initially 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. 

In October 2010, the appellant submitted records of military service from the Philippine government.  The Board notes that the certifying agency was provided with copies of the relevant nonservice-department records in making its November 2010 determination.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).  Again, the NPRC certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The Veteran submitted duplicate records from the Philippine government, which were received by the RO in December 2010.  Copies of these records were already sent to the certifying agency prior to the November 2010 determination.  Moreover, these service documents provided by the appellant do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as it is not an official document of the appropriate United States service department or NPRC.  Accordingly, it 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.

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 NPRC has certified that he had no qualifying service.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro, 2 Vet App. at 532.  

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).

Based upon the record in this case, the appellant had no qualifying service.  He, therefore, does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC, nor does he meet the basic eligibility criteria for establishing entitlement to VA benefits.


ORDER

Basic eligibility for VA benefits is denied.

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




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs