Citation Nr: 1307797 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 12-01 270 ) 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 December 2009 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 her claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002 and Supp. 2012). 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. In October 2010, the RO notified the appellant of her options in choosing an individual or organization to represent her before VA. In December 2010, the appellant requested that she be granted 60 days to find a representative to study and prepare her appeal. In February 2013, the RO notified the appellant that she had 90 days, or by the date the Board promulgated a decision in her case, to appoint a representative. To date, VA has received no information from the appellant identifying a representative. Therefore, the Board will proceed as if she no longer desires representation. 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 her 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 she had service in support of American forces during World War II. Therefore, she maintains that she 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 her claim, the appellant has submitted various pieces of evidence: statements, dated in August 1991 and received in May 2010 from Commissioned and Noncommissioned Officers of the United States Armed Forces, Far East; an April 2000 Confirmation of Military Service from the Philippine Military Service Board, Department of National Defense; and an April 2010 document from the Philippine Veterans Affair Office confirming the appellant as being in receipt of Veterans Old Age Pension. The statements from the Commissioned and Non-Commissioned Officers who knew the appellant in service show that during World War II, she was a member of various units, including the Women's Auxiliary Corps Service Company, G Company, 2nd Battalion, 96th Infantry Regiment, 92nd Infantry Division; that she was an assistant in charge of an emergency aid station; and that she was a bonafide member of the Leyte Guerilla Forces, Leyte Area Command. In addition, the document from the Philippine Veterans Affair Office shows that she received Veterans Old Age Pension as a result of her service in G Company, 2nd Battalion, 96th Infantry Regiment, 92nd Infantry Division. In October 2009 and September 2010 (VA Form 21-3101 (JF)), the Manila VARO requested that the National Personnel Records Center (NPRC) complete AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to June 30, 1946. The Manila VARO noted that the appellant had not been found in the listing of the reconstructed guerilla roster maintained at the Manila VARO. In October 2009 and October 2010, 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. The NPRC made that certification after considering the various information provided by the appellant. Inasmuch as the service department has failed to document or certify the appellant's service, she 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). In arriving at this decision, the Board has carefully considered the appellant's argument that the registration and documentation of members of the guerilla forces were really difficult during the war. She stated that the names could have been misspelled or scribbled incorrectly and that the corruption of the records was believed to be very high. She noted that, therefore, the records with the NPRC could have been incomplete and that it would be a great injustice for the Board to deny her claim solely on the basis that the NPRC had failed to verify her military service. Despite the her contentions, the appellant has not submitted any evidence to support her claim that the records at the NPRC were incorrect, incomplete, or had, otherwise, been corrupted. Therefore, the appellant's contentions, without more, are of no probative value. In this regard, the Board notes that when considering an appeal, it is bound by applicable statutes, VA regulations, and precedent opinions of the VA General Counsel. The Board is not bound by Department manuals, circulars, or similar administrative issues. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 19.5 (2012). 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