Citation Nr: 1304650	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-40 491A	)	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.


REPRESENTATION

Appellant represented by:	Dolores Golosinda


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel





INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied the appellant's claim for a one-time payment from the FVEC Fund.

In addition to the paper claims file, there is a paperless (Virtual VA) claims file associated with the appellant's claim.  The Board has reviewed the Virtual VA file, and the documents contained therein are duplicative of those contained in the paper claims file and/or are irrelevant to the instant claim.

In January 2013, the Vice Chairman of the Board advanced the appellant's appeal on the Board's docket on his own motion, pursuant to 38 U.S.C.A. § 7107(a)(2) and 38 C.F.R. § 20.900(c).


FINDING OF FACT

The National Personnel Records Center (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.


CONCLUSION OF LAW

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009).

VA 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 the Act, submitted to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id. § 1002(c).

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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from such service under conditions other than dishonorable.  Id. § 1002(d).

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).  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).  See 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.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203 (2012); Soria, supra.

In a timely-filed claim, received in April 2009, the appellant provided identifying information, including a service number, and contended that he was eligible for a one-time payment from the FVEC fund as a result of recognized guerilla service.  He reported that he had served with D. CO. 1st COMPOSITE INF. BN. BMA from September 20, 1943 to September 26, 1945.

In connection with his claim, and throughout the course of his appeal, the appellant submitted a number of documents in support of his claim, to include copies of identification cards from the Republic of Philippines Commission on Elections and Office of Senior Citizen Affairs; a copy of a card issued by the Philippine Veterans Affairs Office, identifying him as a "Veteran"; an Affidavit for Philippine Army Personnel, indicating, among other things, that he was attached to the U.S. 112th Inf, 6th Army, until September 25, 1945; Certifications from the Armed Forces of the Philippines, Office of the Adjutant General, dated in February 2005 and March 2009, reflecting that the appellant served as a recognized guerilla with 1st Bn. M Ponce Regt (BMA),  D Co. 1st Composite Inf Bn BMA, until September 26, 1945; a Certificate from the Commonwealth of the Philippines, Philippine Army, reflecting that he enlisted on September 20, 1943 in Baliuag, Bulacan, for the 3rd Regiment (M. Ponce Regt.) BMA, and was honorably discharged in March 1946, at the rank of Sergeant; and a February 1960 Acknowledgement from the Republic of the Philippines Department of Finance, Bureau of the Treasury, reflecting that he was found entitled to back pay for service performed between September 20, 1943 and September 26, 1945.

The appellant also submitted an Enlistment Record reflecting that he had served in the Philippine Army from September 20, 1943 to September 26, 1945, with distinguished service in the Philippine Liberation, including participation in the liberation of the Bulacan Area; a sworn statement from S.C.S., dated in February 1946, identifying himself as a major in the Philippine Army, and Executive Officer of the 1st Composite Infantry Battalion, Bulacan Military Area, and indicating that the appellant joined the 1st Bn M Ponce Regiment on September 20, 1943, and was attached to the 112th Cavalry R.C.T. 6th Army from February to April 1945, and was attached to the 342nd Infantry 86th Division through February 1946; and a W.D., A.G.O. Form No. 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty or Retirement), dated in March 1946, reflecting that the appellant was examined.

In May 2009, April 2010, and September 2012, the RO requested verification of service by the applicable United States service department using the spelling of the appellant's full name, his place and date of birth, reported dates of service and service number, the unit designations provided in his supporting documents, and copies of documents submitted in support of his claim.  The RO noted, among other things, that the appellant was listed in the Reconstructed Recognized Guerilla Roster maintained by the RO.

In June 2009 and May 2010, the NPRC responded 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.  In October 2012, upon reviewing additional documents submitted in support of the appellant's claim, the NPRC indicated that no change was warranted in the prior negative service certification.

As noted above, the appellant has submitted statements and documentation pertaining to his reported service in the recognized guerillas in an effort to support his claim.  However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012).  On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund.

NPRC has duly considered the appellant's application for VA benefits and has, in effect, certified on three occasions 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 Board is bound by that certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA).

The Board is sympathetic to the appellant's situation, and does not question the sincerity of his belief that he is entitled to the benefit he seeks.  However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific:  It must be shown by verification of the United States service department that the claimant has qualifying service.  The Board is bound by the law as written.  As, on these facts, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

On November 9, 2000, the President signed into the law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)).  The VA General Counsel has held that the notice and duty to assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award.  VAOPGCPREC 5-2004 (June 23, 2004); VAOPGCPREC 2-2004 (March 9, 2004).  The appeal must be denied.


ORDER

The claim for a one-time payment from the FVEC Fund is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs