Citation Nr: 1303522 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-44 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Manila, the Republic of the Philippines, Regional Office (RO) which determined that the Appellant did not meet the eligibility requirements for a one-time payment from the FVEC Fund. In January 2013, the Board advanced the Appellant's claim on the docket on its own motion. The Board has reviewed both the Appellant's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. 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 active service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The Appellant is not eligible for a one-time payment from the FVEC Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Inform and to Notify In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must inform the claimant about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. The Court has held that the statutory and regulatory provisions pertaining to the VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case, the facts are not in dispute. Resolution of the Appellant's appeal is dependent on interpretation of the regulations pertaining to eligibility for FEVC payments. As will be shown below, the Board finds that the Appellant does not have the required service for payment of such benefits. Therefore, because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the Appellant in substantiating the claim). II. Eligibility Under the ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FEVC Fund. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000.00 for non-United States citizens or $15,000.00 for United States citizens. For eligible persons who accept a payment from the FEVC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ..." However, nothing in the 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." An eligible person is an individual who served before July 1, 1946, in either 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 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 described in under conditions other than dishonorable. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). Only service department records can establish if and when a person was serving on qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341(1997); Cahall v. Brown, 7 Vet. App. 232, 237(1994). The service department's findings are binding and conclusive upon the Department of Veterans Affairs (VA). VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Report of Separation from the Armed Forces of the United States (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 United States 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. If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department. 38 C.F.R. § 3.203 (2012). In his March 2009 claim for a FVEC Fund payment, the Appellant reported that he had served as a recognized guerrilla in Company L, 3rd Battalion, 125th Regiment, Sulu Area Command from 1944 to 1945. The Appellant did not submit either 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. In support of his claim, the Appellant did submit several documents. An undated document entitled "Roster of Troops: L Co., 3rd Battalion, Sulu Infantry Regiment" lists the Appellant as a member. A June 1967 letter to the Appellant from the Philippine Veterans Administration states that his "request for certification to the Civil Service Commission as a recognized guerrilla veteran of World War II has been favorably considered on the basis of your approved claim for veterans preference." A September 1980 certificate from the General Headquarters of the Allied Forces of the Philippines indicates that the Appellant's "name is carried in the Approved Revised Recognized Grla Roster as Pvt. [the Appellant] of 'L' Co., 1st Sulu Inf. Regt SAC." A May 1983 written statement from the Philippine Veteran Affairs Office reflects that the Appellant was "a veteran of World War II/Philippines Revolution who served with L Co. 3rd Bn Sulu Area Command." A January 2010 Philippine Veteran Affairs Office certificate states that the Appellant was "an active PVAO pensioner." In a December 2010 written statement, the Appellant asserted that he should be considered as a member of the Commonwealth Army and a recognized guerrilla as he fought against the Imperial Japanese Army and received Philippines veterans benefits. In December 2009, August 2010 and October 2011, the NPRC determined 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." The Appellant did not submit acceptable evidence of his active service in accordance with the provisions of 38 C.F.R. § 3.203. The RO then sought certification from the service department. 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. This determination is binding on VA. See 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). Therefore, the Appellant may not be considered a veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund. Accordingly, the benefit sought on appeal 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 The Appellant is not eligible to a one-time payment from the FEVC Fund. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs