Citation Nr: 1302117 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-03 145 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) 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 C. L. Wasser, Counsel INTRODUCTION The appellant asserts that he had service from June 1942 to December 1945 in the recognized guerrillas, to qualify him for recognized service in the United States Armed Forces, Far East (USAFFE). This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 decision by the RO in Manila, the Republic of the Philippines, which determined he did not have qualifying service to be eligible for the one-time payment from the FVEC Fund. 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant does not have recognized active military service for the purpose of receiving the one-time payment from the FVEC Fund. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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 CONCLUSION Since the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See, also, VAOPGCPREC 5-2004 (June 23, 2004). Thus, there is no notice or assistance that would be of any tangible benefit. The appellant asserts that he served as a recognized guerrilla during World War II as a member of "Folsom's Fil-Am A Co. IBN/Rest." He has submitted several supporting documents from the Philippine government, including a photocopy of a certificate from the Commonwealth of the Philippines, Philippine Army showing that he was honorably discharged from the military service of the Philippine Commonwealth in December 1945, and that he enlisted in December 1942 in the Folsom's Fill-American - guerrilla unit. He also submitted photocopies of his identification cards with the Veterans Federation of the Philippines. He submitted an Affidavit for Philippine Army Personnel showing that he was a civilian guerrilla with A Co. 1st Bn 1st Regt. Folsom's Fil-American, and a certificate from the Armed Forces of the Philippines dated in July 1998 showing that he was with Folsom's Fil-Am A Co 1 Bn 1 Regt from December 1942 to September 1945. The appellant also submitted a sworn affidavit from A.C. and V.P., who stated that they are legitimate Philippine Veterans of World War II, that the appellant is a "legitimate Veteran," that he was their co-member in Fil-American Infantry and they were present during the encounter of World War II. In his substantive appeal, the appellant contended that he was in the same unit as these individuals, and that they were granted benefits under the FVEC Fund. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC 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 U. S. 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, the service department's decision on such matters is conclusive and binding on VA. See 38 C.F.R. § 3.203(c), Duro v. Derwinski, 2 Vet. App. 530, 532 (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, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is ineligible for VA benefits based on Philippine service unless a United States service department documents or certifies his or her service. Soria, 118 F. 3d at 749. Here, the NPRC has declined to certify the appellant's claimed service on two separate occasions. In May 2010 and October 2010 responses, the NPRC indicated he "has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces." Detailed information regarding the dates, locations, and units of his alleged service were submitted and reviewed, and all identifying information, such as date of birth, parentage, and place of birth, were also considered. All information submitted by him has been referred to the NPRC for review. Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). He contends that he did indeed have the requisite service as a Filipino guerrilla during World War II. Unfortunately, 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). The lack of certification from the NPRC is binding on VA over the submitted certifications from the Philippine Army. ORDER Entitlement to a one-time payment from the FVEC fund is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs