Citation Nr: 1301111 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-18 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund. WITNESSES AT HEARINGS ON APPEAL The Veteran and his grandson ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in May 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund. In October 2010, the appellant testified at a personal hearing at the RO. A transcript of the hearing is in the appellant's claims file. In March 2011, the Board remanded this case to schedule the appellant for a personal hearing at the RO. In June 2011, the appellant testified at another personal hearing at the RO. A transcript of the hearing is in the appellant's claims file. 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 criteria for eligibility to a one-time payment from the FEVC fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); 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 FINDINGS AND CONCLUSION Duty to Notify and Assist The Board 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. 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). Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss the VCAA duties. Analysis The American Recovery and Reinvestment Act authorized a one-time benefit 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). For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...." However, nothing in this act "prohibit[s] 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 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 (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, 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 that he is entitled to a one-time payment from the FVEC fund. He essentially alleges that he served with the Philippine Commonwealth Army, USAFFE (U.S. Armed Forces, Far East) from December 1941 to August 1947. He also contends that he had recognized guerilla service. An August 1990 Application for Old Age Pension from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, noted that the appellant served in the USAFFE and that he had recognized guerilla service during World War II. It was reported that the appellant served as a private in the infantry and that he was discharged on August 7, 1941. There was a notation that the appellant's last unit of assignment was with the 46th MP Company. A March 1996 certification from the Armed Forces of the Philippines, General Headquarters, indicated that the appellant jointed D company, 1st Batallion, 83rd Infantry (F-23) on December 14, 1941, and that he was discharged on August 7, 1947. There was a notation that his military status was USAFFE. In a June 2006 statement, the appellant reported that he was a member of the USAFFE. He indicated that he was inducted on December 14, 1941 and that he was discharged on August 7, 1947. The appellant stated that he was a private and that he served with D Company, 1st Batallion, 83rd Infantry. He reported that his last organizational unit was 46 MP Company, Puerto Princessa, Palawan, Philippines. In August 2006, pursuant to prior claim by the appellant for VA nonservice-connected benefits, the RO requested verification of the appellant's service from the National Personnel Records Center (NPRC). The RO reported that appellant alleged that he had USAFFE service and that he served with D Company, 1st Batallion, 83rd Infantry. His date of birth was listed as May [redacted], 1919. His place of birth was listed as Sevilla Bohol, Philippines. The names of the appellant's mother and father were listed as unknown, but his spouse's name was listed. In a September 2006 response to the August 2006 request for verification of the appellant's service, the NPRC reported 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. A November 2008 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, indicated that the appellant was inducted on December 14, 1941, and that he served with D Company, 1st Batallion, 83rd Infantry (F-23). It was noted that the appellant was discharged on August 7, 1947. There was a notation that the appellant's military status was USAFFE/Guerilla. The certification also reported that the appellant was on the guerilla roster of 1948 and that he served with E Company, 85th Infantry, Bohol Area Command, with a date of recognition of October 2, 1943. A February 2009 statement from the NPRC reported that the appellant's name was not shown in the official records and archives on file which listed the members of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces during World War II. In March 2009, the appellant filed his claim for legal entitlement to a one-time payment from the VA fund. He reported that he had USAFFE service from December 14, 1941, to August 7, 1947. He stated that he served with D Company, 1st Batallion, 83rd Infantry (F-23). The appellant listed the names of his mother and father, as well as the name of his spouse. In November 2009, the RO requested verification of the appellant's service from the NPRC. The RO reported that the appellant had alleged USAFFE service with D Company, 1st "Infantry", 83rd Batallion, as well as guerilla service with the Bohol Guerillas, Bohol Area Command. The RO indicated that the Veteran reported that he served from December 14, 1941 to August 7, 1947. His date of birth was listed as May [redacted], 1919 and his place of birth was listed as Sevilla Bohol, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO indicated that the appellant's name was listed as a private in the Reconstructed Recognized Guerilla Roster maintained at that facility. In a December 2009 response to the November 2009 request for verification of the appellant's service, the NPRC indicated 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 again requested verification of the Veteran's service from the NPRC. The RO indicated that the appellant had alleged USAFFE service with D Company, 1st "Infantry", 83rd Batallion; guerilla service with the Bohol Guerillas, Bohol Area Command; and that he served from December 14, 1941 to August 7, 1947. His date of birth was listed as May [redacted], 1919 and his place of birth was listed as Sevilla Bohol, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO indicated that the appellant's name was listed as a private in the Reconstructed Recognized Guerilla Roster maintained at that facility. In a February 2010 response to the January 2010 request for verification of the appellant's service, the NPRC indicated 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. At an October 2010 RO hearing, the appellant testified that he had USAFFE service and that he served with D Company, 1st Batallion, 83rd Infantry. He stated that he was inducted on December 14, 1941. The appellant indicated that on August 7, 1945, he joined the guerillas in Puerto Princessa in Palawan, Philippines. He reported that he was discharged on August 7, 1947. The appellant maintained that during the period from August 7, 1945 to August 7, 1947, he was assigned to a military police unit. At a June 2011 RO hearing, the appellant testified that he had USAFFE service with D Company, 1st Batallion, 83rd Infantry. He also reported that he served with the Bohol Guerillas in the Bohol Area Command in Palawan, Philippines, and was assigned to E Company, 1st Batallion. He further reported that he served with a Military Police Company. In September 2011, the RO requested verification of the appellant's service from the NPRC. The RO indicated that the appellant had alleged USAFFE service and guerilla service from December 14, 1941 to August 7, 1941. The RO reported that the Veteran indicated that he served with D Company, 1st "Infantry", 83rd Batallion; E Company, 85th Infantry, Bohol Area; F Company, 1st Batallion; and the 46 MP Company, Puerto Princessa, Palawan, Philippines. His date of birth was listed as May [redacted], 1919 and his place of birth was listed as Sevilla Bohol, Philippines. The names of the appellant's mother and father, as well as his spouse were all listed. The RO indicated that the appellant's name was listed as a private in the Reconstructed Recognized Guerilla Roster maintained at that facility. An October 2011 response from the NPRC indicated 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 appellant does not legally qualify for a one-time payment form the FVEC fund. The NPRC has specifically certified, on numerous occasions, 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 August 1990 Application for Old Age Pension from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office; the March 1996 certification from the Armed Forces of the Philippines, General Headquarters; and the November 2008 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certifications are not official documents of the appropriate United States service department, and are without the official seal. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Pursuant to both 38 C.F.R. § 3.203(c) and the VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). However, the "new evidence" submitted by the appellant is duplicative of his contentions of service (i.e., USAFFE and recognized guerilla service) previously considered by the service department (NPRC). In multiple searches following additional information submitted by the appellant, including pursuant to his hearing testimony, the NPRC has specifically indicated the appellant did not have the necessary service in this matter. Additionally, in the November 2011 supplemental statement of the case, the RO specifically indicated that the September 2011 request to the NPRC (noted above) included all pertinent service information in the service records and lay statements, etc., submitted by the appellant in regard to his claim. 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). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs