Citation Nr: 1312175 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 12-32 613 ) 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 R. Giannecchini, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) following an appeal of an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In March 2013, the Acting Chairman of the Board advanced this appeal on the Board's docket on his own motion, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that following the perfection of a timely appeal to the Board, the claimant died in September 2011. In October 2011, the claimant's surviving spouse notified the RO that she wished to file a claim for FVEC benefits. In response, the RO, it appears, designated the surviving spouse as a new claimant for the purpose of continuing the claim. The surviving spouse has perfected an additional appeal separate from that perfected by the deceased prior to his death. The Board notes that the surviving spouse does not argue, and the evidence does not show, that she is a person who is personally eligible for payment from the FVEC fund. Rather, her contention appears to be that the deceased appellant met the eligibility criteria, and thus (as his surviving spouse) she may receive the FVEC payment on his behalf. The Board notes that under the applicable law in this case, if an eligible person who has filed a claim for the FVEC benefit dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. See American Recovery and Reinvestment Act § 1002(c)(2), Pub. L. No. 111-5 (Feb. 17, 2009). The Board finds that the request from the surviving spouse to continue prosecution of the appellant's claim on appeal is best described as a request by the surviving spouse to be substituted for the appellant. Furthermore, as the law pertaining to the act of substitution, see 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012), is not a model of clarity, and there are no VA regulations currently in place for guidance on the substitution of claimants, the Board, in this unique case, will accept the surviving spouse as qualified to substitute for the deceased appellant. In light of the surviving spouse's substitution, it is the appellant's original appeal, and not the appeal perfected by the surviving spouse, that will be considered by the Board in this instance. Furthermore, notwithstanding that fact, the relevant issue for the Board's consideration remains the same-whether the deceased claimant had qualifying service for purposes of eligibility for the one-time payment from the FVEC Fund. FINDING OF FACT The National Personnel Records Center (NPRC) has certified that the deceased claimant 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 As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Here, as discussed below, there is no dispute as to the pertinent facts, such as the name or unit of service for the deceased. Neither the deceased claimant nor his surviving spouse made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Pursuant to both 38 C.F.R. § 3.203(c) and VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. Here, the RO has submitted all pertinent identifying information for verification to the National Personnel Records Center (NPRC). The Board finds that there is no further assistance that would reasonably be expected to aid in deciding the claim. Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including that under the FVEC Fund. II. Analysis 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 (Feb. 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 such 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. Id. § 1002(h). 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 to VA a claim for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. § 1002(c). Also, if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. § 1002(c)(2). 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 a 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 such service under conditions other than dishonorable. Id. § 1002(d). 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). See 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 and not with VA. 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; Soria, supra. By way of history, the deceased had submitted a claim for VA benefits to the Manila RO in October 1952. He reported having served in the 12th Infantry Regiment as well as headquarters battalion of the 14th Infantry. The RO is noted to have submitted this information to the United States Department of the Army. In an August 1953 letter, the RO informed the claimant that the Department of the Army responsible for furnishing military service information to VA had reported that the claimant had no qualifying service in the Philippine Commonwealth Army or recognized guerilla service. Thereafter, in a claim received in May 2009, the deceased had provided identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of recognized guerilla service. He identified his unit as "Combat CO. 14th Inf. USAFIP, NL." (The Board notes that the acronym USAFIP, NL stands for United States Armed Forces in the Philippines, Northern Luzon.) In an April 2010 decision, the RO denied the claim. In February 2011, the RO received from the claimant a certificate of discharge associated with the "Commonwealth of the Philippines, Philippine Army." The RO also received an "Affidavit for Philippine Army Personnel" dated in January 1947. The affidavit noted that the claimant had joined and was inducted into the 14th Infantry of the USAFIP, NL and was assigned to "Combat Co. 14th Inf." It was also noted that the claimant had not had any period of military service with the United States Armed Forces of the Far East (USAFFE), but had otherwise served as a guerilla from May 1945 to November 1945. Also in February 2011, the RO received a VA Form 9 (Appeal to Board of Veterans' Appeals). The claimant was noted to contend that the evidence of record at that time documented his service in a recognized guerilla unit. As noted above, the claimant died in September 2011. Following his death and subsequent acceptance of his surviving spouse to continue with prosecution of his claim on appeal, the RO submitted the additional evidence received from the claimant to the National Personnel Records Center (NPRC). In November 2011, the NPRC notified the RO that the claimant had 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 December 2011, his surviving spouse was notified by the RO that eligibility for the benefit was not established. In February 2012, the surviving spouse submitted additional evidence to the RO in support of the claim on appeal. In particular, the RO received a January 2012 certificate of service document from the "General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General." It was noted that the deceased's military status had been that of guerilla and that he had been assigned to Combat Company, 14th Infantry. The RO submitted the additional evidence received from the surviving spouse to the NPRC. In April 2012, the NPRC notified the RO that the deceased had had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Here, the deceased and his surviving spouse submitted statements and documentation pertaining to his military service. However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, that evidence was not issued by the service department (i.e., the NPRC) nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund. The Board has considered the arguments on appeal, particularly those raised concerning verification of the deceased's service through the NPRC and available Philippine records. The Board has reviewed the National Archives and Records Administration (NARA) website listing of Philippine "Guerilla Unit Recognition Files," as was identified by the surviving spouse. The deceased's unit, the "14th Infantry, USAFIP NL," is listed. However, notwithstanding that fact, there is no indication that the guerilla units associated with the NARA website were in the service of the Armed Forces of the United States pursuant to the applicable laws in this case. Furthermore, the Board is mindful, and also finds persuasive, that the title of Section 1002 of the American Recovery and Reinvestment Act is "PAYMENTS TO ELIGIBLE PERSONS WHO SERVED IN THE UNITED STATES ARMED FORCES IN THE FAR EAST DURING WORLD WAR II." Under Section 1002(a)(3), the following history is noted, The regular Philippine Scouts, the new Philippine Scouts, the Guerilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East on July 26, 1941, by an executive order of President Franklin D. Roosevelt. As noted above, an "Affidavit for Philippine Army Personnel" dated in January 1947, noted that the deceased had not had any period of military service with the United States Armed Forces of the Far East (USAFFE). The NPRC has duly considered the application for the FVEC benefit and certified that the deceased 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 emphasizes that it is bound by that certification. See 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). Therefore, the Board finds that the deceased did not meet the basic eligibility requirements for a one-time payment from the FVEC Fund. In light of this fact, there is unfortunately no legal basis on which the surviving spouse is entitled to one-time payment from the FVEC Fund. As the law, and not the evidence, is dispositive in this case, the claim on appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim for a one-time payment from the FVEC Fund is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs