Citation Nr: 1311152	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  11-06 326	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.  


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appellant maintains that he had service from April 1944 to February 1946 in a unit of the Commonwealth Army of the Philippines that was specifically recognized by the Army Forces, Western Pacific (AFWESPAC) as being in the service of the Armed Forces of the United States.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the Regional Office (RO), in Manila, Republic of the Philippines, denying eligibility for the one-time payment from the FVEC Fund.  


FINDING OF FACT

The National Personnel Records Center (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 U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The requirements for a one-time payment from the FVEC Fund are not been met.  38 U.S.C.A. § 5101(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).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to assist and notify

VA has a duty to notify and assist appellants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  These duties are not applicable to this appeal because the appellant has no legal entitlement to the benefit sought, as a matter of law.  Nelson v. Principi, 18 Vet. App. 407, 409-10 (2004).  No additional development could alter the evidentiary or procedural posture of this case.  In the absence of additional evidence, no notice is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant). 

Nonetheless, the RO assisted the appellant in the development of his claim.  The RO made an initial request for service department verification of the appellant's service.  When it received additional documentation from the appellant, it submitted that evidence for service department verification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (holding that VA has a duty to request service department verification of all new and relevant evidence submitted by an appellant to show service).  There are no indications in the record of additional evidence that remains outstanding. 

Applicable law and regulations

Eligible persons are entitled to a one-time payment of $9,000.00 for non-U.S. citizens or $15,000 for U.S. citizens, from the FVEC Fund under the American Recovery and Reinvestment Act of 2009.  Acceptance of this payment constitutes a release of any claim against the United States by reason of such service, unless the person would have been eligible to receive VA benefits (e.g., including health care, survivor, or burial benefits) prior to February 17, 2009.  

The American Recovery and Reinvestment Act, defines a person eligible for one-time payment from the FVEC as anyone 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.  

§ 1002, Pub. L. No. 111-5.

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

To attain Veteran status qualifying service must be shown, and a decision of the U.S. service department on the matter is binding on VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet. App. 530 (1992); 38 C.F.R. § 3.203(c).  VA benefits are not payment based on Philippine service absent documentation or certification by a U.S. service department.  38 C.F.R. § 3.203.  

Background and analysis

The record contains numerous statements from the Veteran purporting to verify the nature of his service.  In a March 2009 statement he states he had recognized service as part of "'K' Co. PANG.[,] 3rd PROV. BN. 2nd PANG. REGT." of the U.S. Armed Forces in the Far Ease (USAFFE), from April 14, 1944, to February 28, 1946.  The appellant also reports that his unit was duly recognized by the AFWESPAC on July 18, 1945, in a February 2010 statement.  In a February 2011 statement, he indicates that his unit was attached to "Bn. 152 Inf. Regt. 38th Div." and "343rd Inf. Regt. 86th Div." of the U.S. Army.  

A Philippine Veterans Affairs Office "APPLICATION FOR OLD AGE PENSION (VETERAN)," signed by the appellant in May 1991, indicates he served with the guerillas.  

In November 2009, September 2010 and again in November 2012, the NPRC reported that the Veteran did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the Service of the United States Armed Forces.  

The Board has carefully considered the documentation submitted by the appellant, including those purportedly generated and maintained by the Philippine government, but he has not provided relevant U.S. service department records or other information sufficient establish qualifying Philippine service for VA purposes.  38 C.F.R. § 3.203.  The appellant purports to support his appeal by citing the Almero v. INS, 18 F.3d 757 (9th Cir. 1994), case, which held that proof of U.S. military service could be established solely with Philippine government documents.  However, Almero has been overturned by statute and is supersede by the laws and regulations governing VA benefits currently in effect.  See Valle v. INS, 81 Fed. Appx. 947 (9th Cir. 2003) (unpublished).  

The NPRC has certified on three separate occasions 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 a matter of law, a one-time payment from the FVCE Fund is not warranted.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to a one-time payment from the FVEC Fund is denied.




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs