Citation Nr: 1310430 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-48 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION In February 2009, the appellant's spouse submitted a claim of eligibility to a one-time payment from the FVEC Fund. In April 2009, the appellant's spouse died. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Manila, the Republic of the Philippines, Regional Office (RO), which determined that the appellant did not meet the eligibility requirements for a one-time payment from the FVEC Fund. The Board has reviewed both the appellant's spouse's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. FINDING OF FACT The appellant's spouse did not have active service, including as either a member of the Philippine Commonwealth Army or a recognized guerrilla, in the service of the Armed Forces of the United States. CONCLUSION OF LAW The appellant is not eligible for a one-time payment from the FVEC Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced Department of Veterans Affairs' (VA) duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duties to notify and to assist do not apply to a claim if resolution of that claim is based on legal interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the facts are not in dispute. Resolution of the appellant's appeal is dependent on interpretation of the regulations pertaining to eligibility for payment from the FVEC Fund. As will be shown below, the Board finds that the appellant's spouse had no verified active service; therefore, as no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Payment from the FVEC Fund The appellant asserts that she meets the criteria for a one-time payment from the FEVC Fund based on her spouse's service against the Imperial Japanese forces in the Philippines during World War II. The appellant reported that her spouse had served as a recognized guerrilla. Under the ARRA, a one-time benefit is provided for certain Philippine veterans to be paid from the FEVC Fund. ARRA § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). Payments for eligible persons will be either in the amount of $9,000.00 for non-United States citizens or $15,000.00 for United States citizens. If an eligible person who filed a claim for benefits dies before payment, the payment shall be made instead to the surviving spouse. For eligible persons who accept a payment from the FEVC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service." However, nothing in the 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." An eligible person is an individual who served before July 1, 1946, in either 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 in the Philippine Scouts under § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538) and was discharged or released from service described in under conditions other than dishonorable. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). Only service department records can establish if and when a person was serving on qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341(1997); Cahall v. Brown, 7 Vet. App. 232, 237(1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). For the purpose of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a Report of Separation from the Armed Forces of the United States (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 United States 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. If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department. 38 C.F.R. § 3.203. In his February 2009 claim for a FVEC Fund payment, the appellant's spouse reported that he had served with the "SMS Regiment, Phil-Am. Troops" from January 10, 1943 to February 12, 1946. The appellant's spouse did not submit either a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203. In support of the instant claim, the appellant's spouse and the appellant did submit several documents. A September 1945 certificate from "Headquarters, Saber Force APO 38" indicates that the appellant's spouse had served with the Saber Force from "July 1, 1945 to date." A December 1945 certificate from S. M. states that the appellant's spouse was on the roster of the "S-M-S Regiment" in August 1945. A January 1946 affidavit from S. M. clarifies that the appellant's spouse had served with the "SMS Regt., Marking's Fil-American Troops" from January 10, 1943 to January 11, 1946." A July 1953 written statement from the General Headquarters, Armed Forces of the Philippines reports that the appellant's spouse appeared on the reconstructed roster of the SMS Regiment, 3rd Army Corps as of February 1945. An undated affidavit from M. M. indicates that the appellant's spouse served with the Markings Phil-American Irregular Troops from January 1943 to August 1945. In September 2009, April 2010, and May 2011, the National Personnel Record Center (NPRC) determined that the appellant's spouse had "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." In her June 2010 notice of disagreement, the appellant conveyed that her spouse had trained and fought alongside United States soldiers against the Imperial Japanese Army. In her November 2010 Appeal to the Board (VA Form 9), the appellant advanced that the submitted documentation should be accepted as proof of her spouse's qualifying service notwithstanding the NPRC's adverse determinations. The appellant did not submit acceptable evidence of her spouse's active service in accordance with the provisions of 38 C.F.R. § 3.203. The NPRC has certified that the appellant's spouse has no verified service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. For this reason, the appellant's spouse may not be considered a veteran for the purpose of establishing entitlement to a one-time payment from the FVEC Fund. Accordingly, the benefit sought on appeal is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER The appellant is not eligible to a one-time payment from the FEVC Fund. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs