Citation Nr: 1311347 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 11-18 608A ) 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 J. D. Deane, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The following decision is based on review of the appellant's claims file in addition to his Virtual VA (VVA) file or "eFolder." 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) 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As for the appellant's claim of basic eligibility for a one-time payment from the FVEC Fund, the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the appellant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the appellant of the information or evidence necessary to prove the element of veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of veteran status is necessary in most, if not all, cases). Here, although the appellant was not provided with the required notification prior to the initial adjudication of his claim, the Board finds that no prejudice has resulted. In a March 2010 letter, the RO explained what the evidence must show to support a claim for entitlement to FVEC and that verification of military service was the responsibility of the NPRC and its findings were binding on VA. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA"); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Nevertheless, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the FVEC Fund. VA's duties to notify and assist are thereby generally inapplicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). The Board observes that in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit held (in the context of a Dependency and Indemnity Compensation claim), that where service department certification of a claimant's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a veteran's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-81. The Federal Circuit further held that the correct interpretation of the governing statutes and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c). Id. In this case, the RO requested service department certification of the claimant's alleged active service in November 2009. Thereafter, in July 2010, the appellant submitted a copy of a September 1996 letter from the Philippine Veterans Affairs Office showing that his claim for military status as a deserving guerrilla veteran had been approved by the Philippine government. Nevertheless, although new, this evidence does not change the pertinent information already submitted to the service department (to include the same appellant name, service number, service dates, and service organization/unit), and would not warrant another request to NPRC. The stipulations set out in Capellan have been met. Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, VA may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of the Act, submitted a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012), Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F.3d 747. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, 118 F.3d 747. In a timely February 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC fund. The RO requested verification of service by the applicable United States service department using all identified variations of the appellant's name, place of birth, date of birth, reported ranks, dates of service, and unit designations provided by the appellant in his supporting documents. In February 2010, the NPRC responded 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. NPRC has duly considered the appellant's application for VA benefits and has certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United States Armed Forces. The Board is bound by that certification. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA). The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs