Citation Nr: 1307822	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO.  11-21 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.

2.  Entitlement to VA death benefits, to include accrued benefits.

3.  Entitlement to VA nonservice-connected death pension benefits.


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel



INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the decedent (the appellant is the surviving spouse) did not have qualifying service to be eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund.  The January 2010 decision also denied the appellant's claim of entitlement to VA death benefits to include accrued benefits as well as nonservice-connected death pension benefits.  (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).)


FINDING OF FACT

In July 2009 and October 2009, the National Personnel Records Center (NPRC) certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.


CONCLUSIONS OF LAW

1.  The decedent did not have recognized active military service for the purpose of obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).

2.  The criteria for entitlement to VA death benefits to include accrued benefits, based on qualifying service by the decedent, have not been met.  38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.3, 3.40, 3.41, 3.203 (2012).

3.  The service requirements for eligibility for VA nonservice-connected death pension benefits are not met.  38 U.S.C.A. §§ 101(2), 101(24), 107, 1521, 1541 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (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 are dispositive of the issues on appeal, the duties to notify and assist imposed by the VCAA are not applicable to these claims.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is 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 certifications of service are 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 legal entitlement to VA death benefits, as well as, the one-time payment from the Filipino Veterans Equity Compensation Fund is precluded based upon the decedent's lack of qualified service; therefore, VA death benefits and legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

II. Filipino Veterans Equity Compensation Fund

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments 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 who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service...."  However, nothing in this act "prohibit[s] 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 this Act." 

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  Section 1002 (c)(1) provides that the Secretary 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 this Act, submits to the Secretary a claim for benefits under this section.  The application for the claim shall contain such information and evidence as the Secretary may require.  Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 

Section 1002 (d) provides that an eligible person is any person who (1) 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 of 1945 (59 Stat. 538 ); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. 

The question involved in this case is whether the decedent has the requisite military service necessary to receive benefits.  For the purpose of establishing benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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).  When a claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c).

Here, the appellant claims that her husband, the decedent, served from September 1943 to December 1945 with the 31st Infantry "G" Company of the Commonwealth Army of the Philippines.  See, e.g., the appellant's claim dated January 2009.

The Board initially observes that a one-time payment is only available from the FVEC Fund for eligible persons as defined by the statute; there is no provision for payments to surviving spouses, except on an accrued basis, where an eligible Veteran filed a claim for payment that was pending upon his death.  (As will be discussed below, the appellant is not entitled to VA death benefits to include accrued benefits).  Thus, as the decedent's claim of entitlement to a one-time payment from the FVEC Fund was denied in January 2010, prior to the appellant's claim, the appellant is not eligible for legal entitlement to a payment from the FVEC Fund.

Moreover, a review of the claims file shows that there is no DD Form 214, Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1) of record, with respect to the decedent's military service.  The certificate of discharge from the Philippine Army previously submitted by the decedent fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as it is not an official document of the appropriate United States service department but rather a document from the Philippine government.  As such, the document from the Philippine government submitted by the appellant 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.

More importantly, NPRC has certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas.  The RO twice contacted the NPRC in order to verify the decedent's service.  In July 2009 and October 2009, the NPRC certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  This verification 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 an appellant who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department.  Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).

The Board stresses to the appellant that establishing veteran status with service in the Philippine Commonwealth Army is limited by the requirements and proscriptions of 38 C.F.R. § 3.203 and § 3.41.  These provisions require that an applicant prove service in the Philippine Commonwealth Army with either official documentation issued by a United States service department or verification of the claimed service by such a department.  See Soria, 118 F.3d at 748; Palor v. Nicholson, 21 Vet. App. 325 (2007).  There are no other means.  Id.

Quite simply, recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.  This department 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 decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, Far East.  The decedent may not, therefore, be considered a veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.

While the Board has considered the argument from the appellant, the Board is bound by the law currently in effect, and simply has no discretion to grant the benefit sought given the legal provisions cited above absent any modification of these provisions either by judicial interpretation or otherwise.  See 38 U.S.C.A. § 7104(c) (2012).

III. VA death benefits, to include accrued benefits, and nonservice-connected death pension benefits

The governing law provides that Dependency and Indemnity Compensation (DIC) benefits and non-service connected death pension benefits may be paid to the surviving spouse of a veteran if certain requirements are met.  38 U.S.C.A. §§ 1304, 1310, 1311, 1318, 1541 (West 2002 & Supp. 2012).

Under 38 U.S.C.A. § 5121, a proper party is entitled to any periodic monthly benefits under laws administered by the Secretary to which the Veteran was entitled at his death under existing ratings or decisions, or those benefits based on the evidence in file at the time of the Veteran's death which were due and unpaid preceding the Veteran's death.  See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.  Applications for accrued benefits must be filed within one year after the date of death.  38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).

Death pension is a benefit payable to a Veteran's surviving spouse because of the Veteran's nonservice-connected death.  Basic entitlement exists if (i) the Veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24.  See 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4).

The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2) (2012).  The term "active military, naval, and air service" includes active duty.  38 U.S.C.A. § 101(24)(A).  The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training.  38 C.F.R. § 101(21)(A).  The term "Armed Forces" means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1(a) (2012).

Service in the Philippine Scouts in the organized military forces of the Government of the Commonwealth of the Philippines, including recognized guerrilla service, is recognized service as a Veteran of the Armed Forces of the United States for the purpose of establishing eligibility for VA dependency and indemnity compensation, including the cause of death, and for accrued benefits, but not for pension.  38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40 (2012).

Service of persons enlisted under § 14 of Public Law 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation, but not for pension benefits.  All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Public Law 190, as it constituted the sole authority for such enlistments during that period.  This paragraph does not apply to officers who were commissioned in connection with the administration of Public Law No. 190.  38 C.F.R. § 3.40(b).

Service as a Philippine Scout in the Regular Army inducted between October 6, 1945, and June 30, 1947, inclusive, and in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, United States Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits.  Service department certified recognized guerrilla service and unrecognized guerrilla service under a recognized commissioned officer, only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946, is included for compensation benefits, but not for pension benefits.  38 C.F.R. §§ 3.40(b), (c), (d).

Title 38 of the United States Code authorizes the Secretary of VA (Secretary) to prescribe the nature of proof necessary to establish entitlement to veterans' benefits. 38 U.S.C.A. § 501(a)(1) (West 2002).  Under that authority, the Secretary has promulgated 38 C.F.R. §§ 3.203(a) and (c), to govern the conditions under which VA may extend veterans' benefits based on service in the Philippine Commonwealth Army.  Those regulations require that service in the Philippine Commonwealth Army (and thus veterans' status) be proven with either official documentation issued by a United States service department or verification of the claimed service by such a department.  See 38 C.F.R. § 3.203(a), (c).

Persons with service in the Philippine Commonwealth Army, USAFFE, including the recognized guerrillas, or service with the New Philippine Scouts under Public Law 190, 79th Congress shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to VA non-service-connected death pension benefits.  38 U.S.C.A. § 107, 38 C.F.R. § 3.40.

Here, the appellant asserts that the decedent was recognized guerilla in the Philippine Commonwealth Army during World War II; therefore, she is entitled to VA death benefits, to include accrued benefits, and death pension benefits as his surviving spouse.

With respect to the death pension benefits claim, as indicated above, people with service in the Philippine Commonwealth Army, United States Armed Forces, Far East, including recognized guerrilla service, or service with the Special Philippine Scouts under Public Law 190, 79th Congress, shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to death pension benefits.  See 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40(b), (c), (d).  Therefore, the appellant is not eligible for the requested benefit because the decedent's type of service, as claimed by the appellant, is not one that can qualify a claimant for certain VA benefits, such as nonservice-connected death pension.

As to the VA death benefits to include accrued benefits, it is undisputed that the decedent passed away in November 2009.  See the Certificate of Death.  In January 2010, the appellant submitted an Application for DIC benefits, via a VA Form 21-534.  As indicated above, the certificate of discharge from the Philippine Army previously submitted by the decedent fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as it is not an official document of the appropriate United States service department but rather a document from the Philippine government.  Moreover, NPRC has twice certified that the decedent had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas.  See the NPRC responses dated July 2009 and October 2009.  As emphasized above, this verification is binding on VA such that VA has no authority to change or amend the finding.  Duro, 2 Vet. App. at 532.

As a result, where the service department records fail to show threshold eligibility, the claims on appeal lacks legal merit or legal entitlement, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Since the decedent's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for VA death benefits, to include accrued benefits, as well as death pension benefits and the claims must be denied based upon a lack of entitlement under the law.




ORDER

Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied.

Entitlement to VA death benefits, to include accrued benefits, is denied.

Entitlement to nonservice-connected death pension benefits is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs