Citation Nr: 1304687 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 11-21 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines (RO), which denied the Appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. Initially, the Appellant and her son testified at a formal Decision Review Officer hearing at the Los Angeles, California, RO in March 2011. Next, the Veteran testified at a hearing at the Los Angeles, California, RO in June 2012, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of each hearing is associated with the claims file. 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) 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 during World War II. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Since the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See, too, VAOPGCPREC 5-2004 (June 23, 2004). The appellant, in written statements and testimony before the Board, contends that she had recognized guerrilla service in the Philippine Commonwealth Army, during the period of World War II, from February 1944 to March 1945. Therefore, she asserts that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund and to legal entitlement to VA benefits. The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, see 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). Benefits from the Filipino Veterans Equity Compensation Fund were established pursuant to the American Recovery and Reinvestment Act (ARRA), which originated on February 17, 2009, to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). Under ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. ARRA § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that 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. ARRA § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, 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 a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. ARRA § 1002, Pub. L. No. 111-5 (February 17, 2009). 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from service under conditions other than dishonorable. ARRA § 1002, Pub. L. No. 111-5 (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). Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002); 38 C.F.R. § 3.203 (2012). Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. Those are the same guidelines applicable to determining whether the Veteran has the requisite service to qualify for legal entitlement to VA benefits. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the 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. 38 C.F.R. § 3.203(a). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c). 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); 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, 118 F.3d at 747. 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, 118 F.3d at 747. The appellant filed a formal claim in May 2009 and the claim was denied by the RO's administrative decision issued in May 2010. As part of the claim (VA Form 21-4138 (CF)), the appellant provided her identifying information, and contended that she was eligible for a one-time payment from the FVEC fund as a result of service as a "Recognized Guerilla" in NAIC Taparan Volunteer Hospital (Guerilla), from February 1, 1944 to March 24, 1945. She submitted copies of a current U.S. Passport and a California Driver's license. The appellant also submitted a document from the Republic of the Philippines, Philippine Veterans Board in Manila, dated in October 1957, which certified that the appellant is a veteran of World War II, having been inducted into the service of the NAIC ROTC Taparan Volunteer Hospital (Guerilla) with the rank of Private and recognized her as a "deserving guerilla." Upon receipt of the claim, and supporting documents, the RO contacted the service department to request verification of the appellant's alleged service. In the request, the RO included the information the appellant provided in support of her claim, including her date of birth, spelling of her name, and alleged dates of service. In February 2010, the NPRC responded that "[the appellant] has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, as mentioned, denied her claim in a May 2010 administrative decision. In support of her claim, she testified at a personal hearing before the undersigned Board Veterans Law Judge in June 2012. She stated in this regard, "And then by March 1945, because [of] necessity, we [were] so poor and I want[ed] to study, I went to Manila." June 2012 Travel Board Hearing Transcript at 6. During the next year, she reportedly worked as a housemaid and laundry woman of U.S. Naval personnel stationed in Manila. Id at 7. She testified that she had secretly gone to Manila, because her parents did not like for her to go there at her young age. Thus, by the time she returned home in 1946, she had already missed her chance to have her name placed on the roster of "deserving guerillas." Id. Moreover, during the course of her appeal, the appellant submitted additional documentation contesting the RO's decision and attesting to her service in the recognized guerillas. In particular, the appellant has submitted a document from the Philippine Veterans Affairs Office (PVAO) showing that she is receiving an old age pension (approved March 1994) and educational benefit (approved April 1969), because the PVAO records show she is a veteran of the Philippine Revolution/World War II/Armed Forces of the Philippines who served with NAIC ROTC Taparan Volunteers Hospital (Guerilla) with the rank of Private, from February 1944 to March 1945, under the category of Deserving Guerilla. In summary, the appellant has submitted personal hearing testimony, lay statements and multiple documents purporting to show that she has the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. To emphasize, though, none of these aforementioned documents is a United States service department document establishing qualifying service. Thus, none of the appellant's submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, the appellant's submitted evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, the submitted documentation and lay 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 certified that she had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. 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). For the foregoing reasons, the Board finds that the appellant does not have the requisite service to establish basic eligibility for obtaining legal entitlement to VA benefits, including a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, her claim for benefits must be denied. In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of her belief that she is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. The Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of this law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). Since the appellant's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. Sabonis, 6 Vet. App. 426. ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs