Citation Nr: 1304028	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  11-24 580	)	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

Harold A. Beach, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a March 2010 administrative decision of the VA RO in Manila, the Republic of the Philippines.

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) 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 service requirements for eligibility to a one-time payment from the FVEC fund have not been met.  38 U.S.C.A. § 5101(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

VA's Duties to Notify and Assist

Generally, VA has a duty to assist the appellant in the development of his claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002).  In this case, however, the Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply. VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004.  Therefore, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim.

The Applicable Law and Regulations

On February 17, 2009, the President of the United States signed the American Recovery  and Reinvestment Act of 2009.  That act authorizes the release of a one-time, lump-sum payment to eligible World War II Philippine Veterans.  Those payments are made through VA.  American Recovery  and Reinvestment Act, Section 1002, Public Law 111-5 (enacted February 17, 2009).  Payment for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. 

An eligible person is any person who 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 in 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery  and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. 38 C.F.R. § 3.203 (2012); Soria.  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (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.  


Analysis

The appellant contends, essentially, that he had service in support of American forces during World War II. Therefore, he maintains that he is entitled to a one-time payment from the FVEC. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that there is no legal basis for the appellant's claim. Accordingly, the appeal will be denied. 

In support of his claim, the appellant has submitted various pieces of evidence, including copies of a document from the Commonwealth of the Philippines reflecting his service in the Philippine Army from January 1943 to March 1946; a March 1946 Affidavit for Philippine Army Personnel indicating that February 1945 to March 1946he was a civilian guerilla assigned to C Company, 2nd Engineer Combat Battalion, Tuguegarao, Cagayan; an August 1977 statement from the General Headquarters, Armed Forces of the Philippines confirming the Veteran's guerrilla service; a March 2009 Statement in Support of Claim (VA Form 21-4138) in which the appellant indicated that he also had recognized guerilla service in D. Company, Engineer Batallion, USAFIP,from the Philippine Veterans Affairs Office reflecting the appellant's service from January 1943 through February 1946; and various identification cards. 

In January 2009, April 2010, and October 2011, 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. NPRC made those certifications after considering the various information provided by the appellant. 

Inasmuch as the service department has failed to document or certify the appellant's service, he is not eligible for the one-time payment from the FVEC Fund. Therefore, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426   (1994) (where the law is dispositive, not the evidence, the appeal should be terminated for lack of legal entitlement or merit). 


ORDER

Legal entitlement to the one-time payment from the FVEC fund is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals 




Department of Veterans Affairs