Citation Nr: 1310424	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  10-49 443	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines.

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 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.


CONCLUSION OF LAW

The appellant did not have the requisite service to render him eligible for VA benefits.  38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that he is entitled to VA benefits, specifically a one-time payment from the Filipino Veterans Equity Compensation Fund, due to his service during World War II. 

"Veteran" is defined as a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  A "Veteran of any war" is defined as any veteran who served in the active military, naval or air service during a period of war.  38 C.F.R. § 3.1(e).  Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945 and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits.  

Service 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, U.S. 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 or burial benefits.  38 U.S.C.A. § 107; 38 C.F.R. § 3.40(c) and (d).  Active service will be the period certified by the service department.  38 C.F.R. § 3.9 (a) and (d).

For the purpose of establishing entitlement to VA 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 under 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).  

The Veterans Claims Court has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces."  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  In addition, service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Id.

In November 2009, 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.  He submitted additional information and argument, including a timeline of his service, a discharge from the Philippine constabulary, a certificate of military police training school provided by the USAFFE, and other administrative documents.  These documents were provided to the NPRC and in November 2012, the NPRC stated that no change is warranted in the prior negative service certification.  This finding is binding on VA for purposes of establishing service in the United States Armed Forces.  Spencer v. West, 13 Vet. App. 376 (2000).

Although the appellant contends that he may prove service in the U.S. Armed Forces without verification by the NPRC, he has not submitted a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, or any other evidence issued by the service department.  He has submitted records from the Office of the Philippine Constabulary and Philippine Veterans Administration, which are not sufficient to prove qualified service.  He also submitted documents from the USAFFE regarding his graduation from Military Police Training and his assignment to the Military Police Company (PA).  Neither of these documents indicates honorable service in the U.S. Armed Forces.  

Given the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that the appellant does not meet the basic eligibility requirements for VA benefits.  Thus, the claim lacks legal entitlement under the applicable provisions.  As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).

The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive 

of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).

Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the 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 and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  VAOPGCPREC 5-2004.  

As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Thus, any deficiencies of notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).    

VA requested and obtained service department verification of the appellant's service.  Due to the fact that qualifying service and how it may be established are governed by law and regulations and because the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations.  Under the circumstances of this case, the Board finds that no additional VCAA notice or assistance is necessary.



ORDER

Entitlement to a onetime payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs