Citation Nr: 1307809 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 11-23 831 ) 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. ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION M.B.C. filed a claim for a one-time payment from the FVEC Fund, which was received by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, on February 8, 2010. The RO denied the claim by a decision dated in August 2010. M.B.C. died later that month. Because M.B.C. died prior to the expiration of the one-year period for filing an appeal of the RO's August 2010 decision, his claim must be regarded as having been "pending" at the time of his death. 38 C.F.R. §§ 3.160(c), (d), 20.200, 20.201, 20.302 (2012). The RO has implicitly recognized the appellant as M.B.C.'s surviving spouse. See Statement of the Case, dated in August 2011. She is prosecuting this appeal to the Board of Veterans' Appeals (Board) under a provision of American Recovery and Reinvestment Act that permits a surviving spouse to receive payment on behalf a claimant who filed a claim for a one-time payment from the FVEC Fund, but died before payment could be made. American Recovery and Reinvestment Act § 1002(c)(2), Pub. L. No. 111-5 (Feb. 17, 2009). In view of the RO's actions, and in light of the fact that it has addressed the merits of the appellant's appeal, the Board will accept, for purposes of this adjudication only, that the appellant is a proper claimant. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the sole document in such file reveals that it is duplicative of the evidence in the paper claims file. 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). FINDINGS OF FACT 1. M.B.C. filed a claim for a one-time payment from the FVEC Fund, which was received by the RO on February 8, 2010; the RO denied the claim in a decision dated in August 2010. 2. M.B.C. died later in August 2010; the RO has implicitly recognized that the appellant is his surviving spouse. 3. The National Personnel Records Center (NPRC) has certified that M.B.C. 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 FINDINGS AND CONCLUSION At the outset, the Board observes that the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also 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); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). 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)(1). If an eligible person who has filed a timely claim for benefits under Act dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. Id. § 1002(c)(2). 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 on February 8, 2010, M.B.C. 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 "G" Co, 2nd Bn, 124th Inf. 10th MD, from May 1943 to August 1945. In support of his claim, M.B.C. submitted a certificate from the Philippine Veterans Bank, dated in December 1972, reflecting that he was an owner of a share of common stock in the bank; a copy of a check issued to him by the Philippine Veterans Bank, dated in September 1980; a document from the Philippine Veterans Affairs Office, dated in November 1981, certifying that, according to the records in that office, he was a veteran of World War II/Philippine Revolution who served with the 124th Inf 108th Div 10th Mil Dist, at the rank of private; and a certification from the mayor of the municipality of Bubong, dated in December 1995, indicating that, on the basis of the available records in that office, M.B.C. was "a bonafide member of the old age pension (veteran)" and a native of Dimayon, Bubong, Lanao del Sur. M.B.C. also submitted an Application for Old Age Pension filed with the Philippine Veterans Affairs Office, dated in January 1996, wherein he asserted that he was a World War II guerilla who had been discharged from service in May 1945 at the rank of private, having last been assigned to the 124th Inf. 108th Div. 10th Military Dist; a Certification from the Armed Forces of the Philippines, Office of the Adjutant General, dated in November 1997, reflecting that he had been inducted into service in March 1943, that he had served with G Co 2nd Bn 124th Inf, that he had attained the rank of private, and that he was discharged in August 1945; a certification from the mayor of the municipality of Bubong, dated in June 1998, indicating that, according to the records available in that office, M.B.C. was a veteran of World War II/Philippine Revolution who served with the 124th Infantry 108th Division 10th Military District, with the rank of private, and that his name was carried in the approved Revised Reconstructed Guerilla Roster of 1948; and a certification from the Office of the Clerk of Court, Republic of the Philippines, Shari'a District Court, dated in October 1998, indicating that, per records submitted to that office, it was confirmed ipso facto that M.B.C. was a "true veteran." In addition, M.B.C. submitted photographs, a certificate of birth, and identification cards from the Postal Administration of the Philippines and the Republic of the Philippines Office of Senior Citizen Affairs, in order to establish his identity. In June 2010, the RO requested verification of service by the applicable United States service department using the spelling of M.B.C.'s full name, his place and date of birth, reported dates of service and service number, and the unit designation provided in his supporting documents. It was noted that his name was not listed in the guerilla roster. In August 2010, the NPRC responded that M.B.C. had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. As noted previously, M.B.C. died later that same month. Thereafter, in September 2010, the appellant submitted a certificate of marriage, reflecting that she married M.B.C. in January 1951, a copy of M.B.C.'s death certificate, and identification cards from the Postal Administration of the Philippines and the Republic of the Philippines Office of Senior Citizen Affairs, in order to establish her identity and status as M.B.C. surviving spouse. In October 2010, the appellant submitted duplicate copies of the aforementioned December 1972 certificate from the Philippine Veterans Bank; the document from the Philippine Veterans Affairs Office, dated in November 1981; the December 1995 certification from the mayor of the municipality of Bubong; the November 1997 certification from the Armed Forces of the Philippines, Office of the Adjutant General; and the October 1998 correspondence from the Office of the Clerk of Court, Republic of the Philippines, Shari'a District Court. She also submitted a statement from the Office of the Barangay Chairman, dated in October 2010, certifying that, according to the records in that office, the appellant was M.B.C.'s surviving spouse. Additional evidence pertaining to the purported marital relationship was also received. In June 2011, the RO again requested verification of service from NPRC, enclosing copies of evidence that had been submitted. Later that month, NPRC responded that no change was warranted in the prior negative service certification. As noted above, statements and documentation pertaining to M.B.C.'s reported service in the recognized guerillas have been received from M.B.C. and the appellant in an effort to support this 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 present application for VA benefits and has twice certified that M.B.C. 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. 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 underlying 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). ORDER The claim for a one-time payment from the FVEC Fund is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs