Citation Nr: 1302836 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 11-21 272 ) 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 Fund. REPRESENTATION Appellant represented by: RPB, one time representative ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Manila, the Republic of the Philippines, Regional Office (RO), 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. The Board notes it was unclear whether the appellant wanted a hearing before the Board. In October 2012, the RO informed the appellant he had a hearing scheduled before the Board in December 2012. The record reflects the appellant did not appear for the hearing. Thus, to the extent he requested the hearing, such request is deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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 United States Armed Forces during World War II. CONCLUSION OF LAW The appellant is not eligible to obtain the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 107, 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act, Pub. L. No. 111-5, § 1002 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1 , 3.6, 3.203, 3.40 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant seeks entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In the present case, the appellant essentially contends that his period of service from December 1941 to June 1945 was qualifying service. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). VA's duties to assist and notify have been considered in this case. Since it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund eligibility is precluded . Sabonis v. Brown, 6 Vet. App. 426 (1994). Legal Criteria and Analysis 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." See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009). Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens. 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. In this case, the application was received within the one-year eligibility period, and therefore it was timely submitted. Additionally, § 1002(c)(2) provides that the application for the claim shall contain such information and evidence as the Secretary may require. Further, the section 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 (1) 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 the 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 (2) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the section provides that an eligible person from either one of these categories of service must have been discharged or released from service under conditions other than dishonorable. Further, § 1002(i) provides that the service of a person as described in subsection (d) is recognized as active military service in the Armed Forces for purposes of, and to the extent provided in, this section. Eligibility for VA benefits is governed by statutory and regulatory law that defines an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012). The term "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 C.F.R. § 3.1(d) . Service in the Philippine Scouts and in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service for certain VA purposes, as authorized by 38 U.S.C.A. § 107 (West 2002). Service in the Philippine Scouts (except that described in paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance with benefits that are payable in dollars at the full-dollar rate. 38 C.F.R. § 3.40(a) (2012). Section 3.40(b), titled Other Philippine Scouts, indicates that service of persons enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation and that with a few exceptions benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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: (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 VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a) (2012). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider a claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). The appellant has submitted documents to support his contention that his service qualifies him to receive the one-time payment. In February 2009, the appellant submitted the following documents: (1) a certification from the Armed Forces of the Philippines, showing dates of service, date of birth, place of birth, and other facts; (2) Veterans Information Sheet, showing dates of service and receipt of a Medal of Honor; (3) April 1997 document showing name of appellant, name of appellant's wife, date and place of birth, name of children, and other facts; (4) A December 2005 Certification showing date and place of birth, military status, dates of service, and other facts; (5) April 1997 "Affidavit of loss," wherein the appellant wrote he had been told that he was involved in the guerilla movements and had lost the document when his home was destroyed by fire; (6) Affidavit for Philippine Army Personnel, which showed the appellant had served from December 1941 to June 1945; (7) Certification that the appellant's name shows up on the list of veterans certified by "PVAO" as being entitled to shares of the Philippine Veterans Bank; (8) February 2009 Voter Certification; (9) identification from the Republic of Philippines Office for Senior Citizen Affairs; and (10) VA Form 21-4138, Statement in Support of Claim, wherein the appellant provided his date of birth, place of birth, service number, and other facts. In October 2009, the RO contacted the service department and requested verification of the appellant's alleged service. A November 2009 response from the National Personnel Records Center (NPRC) indicated that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. In March 2010, the RO again contacted the service department to ask it to re-verify the service due to the variation in the appellant's last name and asked if this warranted a change in the prior certification. That same month, the NPRC confirmed that the appellant did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States. The appellant submitted additional records when he submitted his notice of disagreement in June 2010, some of which were duplicative of the evidence listed above. Those records were: (1) identification from the Republic of Philippines Office for Senior Citizen Affairs (duplicate); (2) Joint Affidavit from two disinterested persons, attesting to the fact that the two spellings of the appellant's last names belonged to the appellant; (3) a June 2010 document from the Office of the Municipal Civil Registrar showing date and place of birth, parents's names, and other facts; (4) statements from the appellant's granddaughter, who is representing the appellant in the appeal attesting that the appellant's service qualifies him for the payment from the Filipino Veterans Equity Compensation Fund; (5) Affidavit for Philippine Army Personnel, which showed the appellant had served from December 1941 to June 1945 (duplicate); (6) service records, including enlistment record, military record, "remarks-financial," and final "indorsement;" (7) Affidavits dated in February 1946, from LM, DY and RG, wherein they wrote the appellant had been inducted into the USAFFE as a private; (8) a February 2011 certificate showing the Veteran was receiving a monthly pension check from the Philippine Veterans Affairs Office; and (9) identification from the Philippine Veterans Affairs Office. In June 2012, the RO contacted the service department and requested verification of the appellant's alleged service. A June 2012 response from the NPRC indicated that no change was warranted from the prior negative determination. The 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 NPRC's certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the claimed service, the applicant's only recourse lies within the service department, not with VA). The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 Filipino Veterans Equity Compensation 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 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). (CONTINUED ON NEXT PAGE) ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs