Citation Nr: 1303790 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 12-05 762 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT The National Personnel Records Center (NPRC) has certified that the appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002); 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 FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103A, 5107, 5126, prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. The matter of whether the appellant has the recognized qualifying military service for purpose of payment from the FVEC Fund is determined by application of relevant law, without substantial need for thorough and comprehensive factual inquiry. Where a claim may be resolved on the governing law, including as a question of statutory interpretation, it has been held that the VCAA is inapplicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2002). See also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Hence, the Board may fairly consider the instant claim on the merits (although the appellant received the VCAA notice in August 2011 and the RO has assisted the veteran in the development of this claim). Under applicable law, certain Philippine veterans are entitled to a one-time payment from the FVEC Fund. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009). Payments for eligible persons total either $9,000 (for non-United States citizens) or $15,000 (for United States citizens). If an eligible person accepts a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service. However, nothing in the act prohibits 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 the Act. Section 1002(d) defines an eligible person as (1) any person who served either (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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Department of Defense DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate United States service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains pertinent information as to length, time and character of service; and (3) in VA's opinion, the document is genuine and contains accurate information. 38 C.F.R. § 3.203(a). Where service department certification is required, findings by the service department verifying a person's service are binding on VA. See e.g., Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The proper course for an appellant, if he 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. (1994), overruled on other grounds, D'Amico v. West, 209 F.3d 1322, 1325 (Fed. Cir. 2000). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for VA benefits. The record reflects the appellant's timely filing of a February 2009 claim for recovery under the FVEC based on averred service with a recognized guerilla unit of the Philippine Army in the service of the Armed Forces of the United States from December 8, 1944 to June 5, 1946. The case was forwarded to the National Personnel Records Center (NPRC), which responded in February 2010 that the appellant had no documented service as a member of the Philippine Commonwealth Army including the recognized guerillas, in the service of the United States Armed Forces. There is additional evidence since provided by the appellant, to consist of several official documents issued by Philippine military authorities. This included affidavits establishing Philippine military service, to include identification from the Veterans Federation of the Philippines, copy of membership in the Philippine Veteran Bank, Special Orders No. 116 under 2nd Infantry Division, and multiple-dated certifications issued by the Office of Adjutant General, Armed Forces of the Philippines, General Headquarters. Following receipt of this additional evidence, the RO resubmitted this case to the NPRC, on different occasions, to determine the appellant's status as to prior qualifying active duty. In February 2010, December 2011, and April 2012, the NPRC responded that there was no change warranted in the prior negative service certification. There is no indication that the documents submitted by the appellant were issued by an official service department. Thus, they do not 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. 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 FVEC Fund. As the NPRC's certification is binding on VA, the Board concludes that the appellant does not qualify for a one-time payment from the FVEC fund as a matter of law. 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. The NPRC reiterated that certification after considering the additional information provided by the appellant. Accordingly, whereas the appellant's service does not meet the criteria for qualifying active duty service based on the existing record, the appellant does not meet the basic eligibility requirements for a one-time payment from the FVEC Fund, and the claim must be denied based upon a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs