Citation Nr: 1301376 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 11-00 91A ) 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 T. Adams, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). In June 2012, the appellant withdrew a request for a hearing before the Board which he had made in his November 2010 substantive appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 qualifying 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 service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5103 (West 2002), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. VA also has certain duties to assist the claimant in developing the claim. As will be discussed, there is no dispute as to the Veteran's dates of service, and consequently it is the law which governs the disposition of the case, rather than any weighing of evidence. When the law and not the evidence are dispositive of the claim, VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, VCAA notice is not required because the issue presented 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); VAOPGCPREC 5-2004 (June 23, 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). Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund if they are eligible. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of such service. However, nothing in the act prohibits 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted to VA a claim for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2011), Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the service. 38 C.F.R. § 3.203 (2011); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The appellant claims that he is entitled to a one-time payment from the FVEC Fund based on his service with the USAFFE. Throughout the course of this appeal, the appellant has submitted numerous documents and the record reflects that he enlisted with the Army of the Philippines in April 1945 with the "C" Company, 1st Battalion 15th Regiment, and was discharged in July 1946. In August 2009, the RO requested verification of service by the applicable United States service department. In October 2009, the NPRC rresponded 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. In December 2009, the appellant submitted additional service personnel records that include PA AGO Form 23, Affidavit for Philippine Army Personnel, dated January 1946 and Special Orders 1, 19, and 32 from the 2nd Infantry Division dated November and December 1945. In January 2010, the appellant submitted General Orders No. 161 from the Armed Forces of the Philippines, dated November 1965; AGNR2, Certification from the Ministry of National Defense, dated October 1981; and affidavits from fellow service members. In February 2010, the RO requested re-verification of the appellant's service with the NPRC. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (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). In March 2010, the NPRC again responded 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 November 2010, the appellant submitted a certification and affidavits from fellow service members. In May 2011, the RO submitted a third request to the NPRC for verification of the appellant's service along with another copy of the General Orders No. 161 from the Armed Forces of the Philippines, dated November 1965. However, in June 2011 the NPRC stated that no change was warranted in the prior negative service certification. Capellan, 539 F.3d at 1373. The Board notes that the appellant has written lay statements and affidavits from his fellow service members. However, none of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012). On the contrary, that evidence was not issued by the service department, and does not contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department refuses to verify the claimed service, the applicant's only recourse lies within the service department, not with VA). The Board concludes that the requisite legal requirements for obtaining a one-time payment from the FVEC Fund are not met. Therefore, his claim for benefits must be denied. In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2011); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs