Citation Nr: 1310481 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-14 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Appellant alleges that he had World War II service as a recognized guerilla in the service of the U.S. Armed Forces for the Far East from October 1942 to February 1946. The Appellant's status as a veteran is the issue on appeal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in December 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila. In July 2010 the Board remanded the claim for further development. In February 2013, the appellant testified in front of the undersigned at a videoconference hearing. A transcript of the hearing is of record. 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 National Personnel Records Center (NPRC) has indicated 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. CONCLUSION OF LAW The appellant does not have recognized active military service for the purposes of obtaining the one time payment from the Philippine Veterans Equity Compensation Fund. 38 U.S.C.A. § 5101 (a); American Recovery and Reinvestment Act, Section 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 Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants in developing claims. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2003). In Pelegrini v. Principi, 18 Vet. App. 112 (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 is dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not for application in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board on questions 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 certification of service is 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 entitlement to the one time payment from the Philippine Veterans Equity Compensation Fund for nonservice-connected pension benefits is precluded based upon the appellant's lack of qualifying service; accordingly, legal entitlement to the one time payment from the Philippine Veterans Equity Compensation Fund must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Pertinent Law and Regulations Under the American Recovery and Reinvestment Act, the new one time benefit is provided for certain Philippine Veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act Section 1002, Pub. L. 111-5 (Enacted February 17, 2009). Payment 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 to accept payment from the Filipino Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States for reason of [such] service..." However, nothing in this Act "prohibits a person from receiving any benefit (including health care, survivor, or burial benefits), which the Veteran 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(d) provides that an eligible person is any person who (1) served- (A) before January 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 who were 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. Section 1002 (j) (2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions of 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. Analysis The record reflects the RO requested verification of the appellant's service from the National Personnel Records Center on multiple occasions. In November 2001, April 2002, July 2002, December 2006, and November 2009, the National Personnel Records Center, a component of the appropriate United States service department, reported 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 under the names: Eddie Nerpio Dela Cruz and Leonido Nerpio Dela Cruz. Based on the reports, the RO denied the appellant the one-time payment from the Filipino Veterans Equity Compensation Fund. In July 2010, the Board remanded the claim for further development regarding the appellant's veteran status. The Record showed that the appellant had been deemed eligible for VA healthcare as a priority 5 group. The Board requested that any documents associated with the healthcare eligibility determination be obtained. In an effort to fulfill the Board's remand request, the RO requested records from the Guam Benefits Office, VA Guam Community Based Outpatient Clinic, Guam Vet Center, and the VA Health Eligibility Center. In response to the RO's requests, the Director of the Health Eligibility Center submitted a letter in November 2010 stating that the appellant is assigned to the priority group 5for VA healthcare purposes. The letter further noted that a request had been forwarded to the Enrollment Coordinator of the VA Medical Center in Honolulu, Hawaii. A December 2010 letter from the Enrollment Coordinator states that an application for enrollment was received in January 2007 and the appellant has been actively enrolled with the Guam Community Based Outpatient Clinic. The letter further stated that the documentation requested, documents used to verify eligibility for healthcare, was not available for disclosure at the time as, effective July 2008, all records had been secured off site for electronic scanning. The letter provided dates of service of November 1943 to February 1946 with an honorable discharge. Nonetheless, of record are the medical treatment records from the Guam VA Community Based Outpatient Clinic containing a September 2006 application for healthcare benefits, VA Form 10-10EZ, a certificate of naturalization from the United States, and Affidavit for Philippine Army Personnel. It appears these are the documents used to determine the appellant's healthcare eligibility. In support of his claim, the appellant submitted an affidavit from D.M., a fellow servicemember, wherein he states that the two served in the guerillas in 1942 and were discharged in 1946. The affidavit further states that they served in the same company "H" Co 2nd Bn 121st Inf USAFIPNL. He finally stated that the appellant had not processed his papers as one of the World War II veterans. The appellant also submitted an affidavit form J.N.D.C., his brother, wherein he states that the appellant joined the Philippine Guerillas in 1942. The RO submitted an additional request to the NPRC in August 2011 which included the affidavit from D.M. for the NPRC to do another search based on the unit reported in the affidavit. In September 2011, the NPRC replied that the appellant had no recognized service. At the February 2013 videoconference hearing the appellant testified that he served in the Philippine Guerillas and that he, unfortunately, had not filed the paperwork needed to be recognized as a World War II veteran. He further testified that he believed that he should be recognized as a veteran since he has been deemed eligible to receive healthcare from the VA. The Board has carefully reviewed the appellant's evidentiary submissions. However, the Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.303 as essential proof of service, as they are not official documents of the appropriate United States Service Department, but rather documents from the Philippine Government and individuals known to the appellant. As such, those documents 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 NPRC has 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. The Board is not free to ignore the certification of the NPRC. This certification 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 the appellant is to pursue his disagreement with his Service Department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine Government is not sufficient for benefits administered by VA. Indeed, VA is bound to follow the certifications by the Service Departments with jurisdiction of United States military records. Regarding the appellant's eligibility for VA healthcare, the Board finds that this does not prove his status as a veteran. The record reflects that his eligibility for healthcare was not based on a finding of veteran status by the NPRC, but rather, was based on the Affidavit from the Philippine Army, the appellant's citizenship, and his financial status. While these documents may be sufficient to prove entitlement to VA healthcare, they are not sufficient to establish eligibility to a one time payment from the Filipino Veterans Equity Compensation Fund. Based upon the record in this case, 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. The appellant 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. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) ORDER Legal entitlement to the onetime payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs