Citation Nr: 1301389 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-34 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant asserts that she had qualifying guerilla service from April 1943 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Manila, The Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). VA records show the appellant failed to report for a scheduled hearing in September 2012 and her request for a personal hearing is considered as having been withdrawn. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In this case, the determinative matter at issue involves whether the appellant has qualifying service for a one-time payment from the Filipino Veterans Equity Compensation Fund. When the law, and not the underlying facts or development of the facts, is dispositive in a matter, the VCAA can have no effect on the appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (where the law as mandated by statue, and not the evidence, is dispositive, the VCAA is not applicable); Smith v. Gober, 14 Vet. App. 227 (2000); 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). The Board finds VCAA notice was not required. The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009). In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service. In Section 1002(d) of the statute, an eligible person has qualifying service if he served 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, including among such military forces organized guerrilla forces; and was discharged or released from service under conditions other than dishonorable. For the purpose of establishing evidence of service, 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 if the evidence meets the following conditions: The evidence is a document issued by the service department; and the document contains needed information as to length, time and character of service; and in the opinion of VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2011). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, VA will request verification of service from the service department. 38 C.F.R. § 3.203(c). The Court has held that the findings of the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530 (1992). In this case, the appellant alleges qualifying service in the Commonwealth Army of the Philippines in service of the Armed Forces of the United States (USAFFE), including in the recognized guerilla forces in service of the Armed Forces of the United States. Specifically, she asserts that she served in the Escudero Guerilla Unit, formerly the Bicol Division 5th Military Division, from April 1943 to June 1945. She provided several sworn affidavits attesting that during this period she served with this unit. She also submitted a February 2010 Philippine Veterans Affairs Office statement certifying that she had served in the Escudero Guerilla Unit. In a December 2009 report the NPRC 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. Based upon the evidence of record, the Board finds the documents of record fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The records submitted by the appellant in support of her claim are not official documents of the appropriate United States service department and 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 Filipino Veterans Equity Compensation Fund. The relevant provisions of the law and regulations in regard to determining the appellant's eligibility for Filipino Veterans Equity Compensation Fund benefits under the American Recovery and Reinvestment Act have been adequately considered. For the purpose of ascertaining whether a claimant has the requisite military service the provisions of 38 C.F.R. § 3.203 have been followed. The submitted evidence does not constitute evidence issued by a service department of the United States military. The appellant has provided no further evidence that would warrant a request for recertification from the service department. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). The appellant is not legally entitled to compensation from the Filipino Veterans Equity Compensation Fund under Section 1002 of the American Recovery and Reinvestment Act, Pub. L. No. 111-5. As there is no legal basis to substantiate the claim, it must be denied. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs