Citation Nr: 1308290	
Decision Date: 03/12/13    Archive Date: 03/20/13

DOCKET NO.  11-29 564	)	DATE
	)
	)

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


THE ISSUE

Whether the Appellant is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. 


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

A. Hinton, Counsel



INTRODUCTION

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 Appellant alleges that he is a recognized guerrilla in the service of the Armed Forces of the United States during World War II.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In February 2011 in the notice of disagreement the Appellant requested a personal hearing before a Decision Review Officer.  In September 2011, an informal conference with the Decision Review Officer was held.  At that time, the Appellant stated in writing that the informal conference satisfied his request for a personal hearing. 

FINDING OF FACT

The National Personnel Records Center has certified and re-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 Appellant does not have recognized active military service as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).



The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Governing Law

The Appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits). 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. The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. 

Under Section 1002, an eligible person is any person: (1) who served 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable. See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service). 

For the purpose of establishing evidence of service, the Department of Veterans Affairs 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 the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). 

When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department. 38 C.F.R. § 3.203(c).

The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992).

Facts and Analysis

As indicated by his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, which was filed with VA in March 2009, the Appellant alleges qualifying service as a recognized guerrilla in the service of the Armed Forces of the United States.  



The Veteran listed dates of service from September 1943 to January 1946, and he asserted he served in recognized guerilla service.  

As proof of qualifying service, the Appellant submitted a copy of a document entitled Certification, from General Headquarters, Armed Forces of the Philippines, Camp General Emilio Aguinaldo.  That document states that it is to certify that according to records of PFC Feliciano C. Arenas available in the Headquarters, his military status was Grla (Guerilla); he joined September 20, 1943; his organization was K Co 21st Inf Regt MMD (F-24); Date relieved was January 29, 1946.  

As this document was not issued by a U.S. service department, the RO sought verification of service from the National Personnel Records Center (NPRC), which in January and August 2010, certified and re-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. 

As the document submitted by the Appellant was not issued by a U.S. service department, the document fails to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service, and the document 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 evidence does not constitute evidence issued by a service department of the United States military.

Valid military service has not been certified through a United States service department.  As the Appellant has provided no further information or evidence that would warrant a request for recertification from a U.S. service department, no further development is needed.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification).



As the U.S. service department, through the NPRC, certified and re-certified, that the Appellant did not serve as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United State Armed Forces, the finding is binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992). 

As the Appellant has not submitted acceptable evidence of service under 38 C.F.R. § 3.203(a), and as a U. S. service department has not verified the Appellant's service under 38 C.F.R. § 3.230(c), the preponderance of the evidence is against the claim that the Appellant served in the organized military forces of the Government of the Commonwealth of the Philippines, including service in the guerrilla forces, in the service of U.S. Armed Forces, and concludes that the Appellant is not legally eligible for the Filipino Veterans Equity Compensation Fund benefit under the American Recovery  and Reinvestment Act § 1002, Pub. L. No. 111-5. 

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply. 38 U.S.C.A. § 5107(b).  As the law is dispositive, the claim must be denied because of the lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

The Appellant is not eligible for benefits from the Filipino Veterans Equity Compensation Fund, and the appeal is denied. 



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs