Citation Nr: 1304668 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-40 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION 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). The record reflects the appellant had military service from April 1942 to May 1947, but no qualifying service with the United States Armed Forces. This matter comes before 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, Republic of the Philippines, that determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. FINDING OF FACT The National Personnel Records Center (NPRC) has indicated three times 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 The appellant does not have recognized active military service for the purposes of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act, Section 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants in developing claims. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2003). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that is dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not for application in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board on questions 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 certification of service is 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 entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund for nonservice-connected pension benefits is precluded based upon the appellant's lack of qualifying service; accordingly, 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 recently enacted American Recovery and Reinvestment Act, the 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 Section 1002, Pub. L. 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. For eligible persons to accept payment from the Filipino Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States for reason of [such] service...." However, nothing in this Act "prohibits a person from receiving any benefit (including health care, survivor, or burial benefits), which the Veteran would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act." Id. Section 1002(d) provides that an eligible person is any person who (1) served either (A) before January 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 who were 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. Id. 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 of 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. In support of his claim for entitlement, the appellant submitted the following: an April 1992 certification from the Republic of the Philippines Department of National Defense, which sets forth that the appellant's name is on the reconstructed guerrilla roster of the A company Blue Eagle regiment; a March 1999 certification from the Office of the Adjutant General, General Headquarters of the Armed Forces of the Philippines, which repeats the information from the April 1992 document; an undated notice from the Commonwealth of the Philippines, Philippine Army, that details his rank and status of discharge, and that he was a member of the Golden Bn Blue Eagle Regiment; an undated Enlistment Record showing he was a rifleman involved in guerilla activities and that he had no military service under the United States Government to first Army enlistment; an undated letter from Manila RO that explains what forms the appellant would need to complete to file a claim for benefits; and, a September 1984 document from the Philippines Veterans Affairs Office, which certifies the appellant served with the A company Blue Eagle Regiment AUSA or Malakas division. This information, along with copies of the Veteran's submissions, were sent to the NPRC in July 2009, April 2010, and September 2012, for confirmation. Of record are three communications, dated October 6, 2009, June 9, 2010, and November 7, 2012, from the NPRC reflecting 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 has carefully reviewed the appellant's evidentiary submissions. However, the Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as essential proof of service, as they are not official documents of the appropriate United States Service Department, but rather documents from the Philippine Department of National Defense, Philippine Armed Forces, Philippine Army, the Manila RO, and the Philippine Veterans Affairs. As such, these 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. The Board is not free to ignore the certification of the NPRC. This certification 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 is to pursue his disagreement with his Service Department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by Philippine governmental and military offices is not sufficient for benefits administered by VA. VA 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 the recognized guerrillas, in the service of the United States Armed Forces. The appellant may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs