Citation Nr: 1302963 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 11-06 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The appellant had a period of duty from October 1942 to August 1945, but no qualifying service with the United States Armed Forces. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. 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 appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The requirements for legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the appellant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the appellant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the appellant about the information and evidence that VA will seek to provide; and (3) inform the appellant about the information and evidence she is expected to provide. However, in the case at hand, the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. VA's duties to assist and notify have been considered in this case. However, as 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 for nonservice-connected pension benefits is precluded based upon the Veteran's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Under the circumstances, there is no possibility that the appellant's claim for benefits might be substantiated. Accordingly, further consideration of the provisions of the VCAA is not necessary in this case. One-Time Payment from the Filipino Veterans Equity Compensation Fund In reaching this determination, the Board wishes to make it clear that it has reviewed all the evidence in the appellant's claims file, which includes his multiple contentions, as well as various administrative records, and reports of the National Personnel Records Center. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the appellant's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant in this case argues that he has the requisite service to qualify for VA benefits, namely, a one-time payment from the Filipino Veterans Equity Compensation Fund. 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." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 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 (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. Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. For the purpose of establishing entitlement to VA benefits, 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 under 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). The United States Court of Appeals for Veterans Claims (Court) has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In this case, information obtained from the NPRC in September 2009 and August 2010 shows that the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). The appellant submitted an Affidavit for Philippine Army Personnel and a Certification from the Armed Forces of the Philippines showing that the appellant is considered a veteran by the government of the Republic of the Philippines. The appellant also submitted his own statements indicating that he was part of Hq. Serv. 8th Inf. from October 1942 to August 1945. The Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government and his own statements which are not supported by official findings. As such, those documents 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 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. As noted above, this verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). The proper course for the appellant, who believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine government, although sufficient for entitlement to benefits from that government, is not sufficient for benefits administered by VA. This agency is bound to follow the certifications by the service departments with jurisdiction over United States military records. Based upon the record in this case, the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. The appellant may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. In his substantive appeal, the appellant referenced Almero v. INS, 18 F. 3d.757 (9th Cir. 1994), and Serquina vs. United States, 19 F. 3rd 29 (1994) to support his contention that VA must consider certifications of service by Philippine entities. However, the U.S. Court of Appeals for the Federal Circuit specifically rejected that argument, noting that the statutory provision on which the 9th Circuit relied in Almero was specific to immigration and naturalization issues, and did not apply to such issues as veteran's status. See also Fazon v. Brown, 9 Vet. App. 319 (1996) (distinguishing between veteran's status for purposed of naturalization and veteran's benefits). The appellant also argues in the substantive appeal that pertinent service records were possibly burned at the time of a fire at the NPRC in 1973. However, the NPRC has provided certification as to the appellant's service in September 2009 and August 2010 and there is no indication that any pertinent records in this case are affected by the fire. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ___________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs