Citation Nr: 1312455	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  10-30 945	)	DATE
	)
	)

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


THE ISSUE

Whether the Appellant is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 





INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Appellant alleges that he was a recognized guerrilla in the service of the Armed Forces of the United States during World War II.

This matter is before the Board of Veterans' Appeals (Board) on appeal of administrative decision issued in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In August 2012, the Board remanded the claim to advise the Appellant of the method by which he could designate a Power of Attorney to represent him during the claims process, as he had indicated his desire to appoint one.  Unfortunately, notices mailed to the Appellant's address of record were returned as undeliverable.  Thus, the requested development was completed to the extent possible.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). 


FINDING OF FACT

The National Personnel Records Center, the federal agency charged to verify service for a service department, certified and re-certified that the Appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the Armed Forces of the United States.






CONCLUSION OF LAW

The Appellant does not have recognized active military service as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits.  38 U.S.C.A. § 501(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).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.).


REASONS AND BASES FOR FINDING AND CONCLUSION

Governing Law

The Appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens or $15,000 for United States citizens.  The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code.


Under Section 1002, an eligible person is any person: (1) who served 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 (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable.  See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service).

For the purpose of establishing evidence of service, the Department of Veterans Affairs 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).

When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department.  38 C.F.R. § 3.203(c).  The National Personnel Records Center is the federal agency charged to verify service for a service department.

The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992).


Facts and Analysis

The Appellant alleges qualifying service in the Commonwealth Army of the Philippines in service of the Armed Forces of the United States. Specifically, he asserts that he served in the Commonwealth Army from December 1941 through December 1946. 

As proof of qualifying service, the Appellant has submitted copies of documents, including copies of certifications of the Appellant's service with the Armed Forces of the Philippines from May 1944 to June 1945, dated in September 1975, February 1992, and September 2003; an affidavit completed by the Appellant in November 1972 regarding his World War II service; an affidavit authored by fellow Filipino Veteran dated in November 2003; a Philippine Veterans Affairs Office document reflecting the Appellant's receipt of pensions benefits.

As the documents are not official documents of a U.S. service department, the documents fail to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service.  As the documents were not issued by a U.S. service department, the RO sought verification of service from the National Personnel Records Center (NPRC), the federal agency charged to verify service for a service department, which initially 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 in November 2003, when the Appellant had sought VA disability benefits.  In January 2012, the NPRC recertified 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.

And the findings of the U.S. service department through the NPRC are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  



And the Appellant has provided no further evidence or information that would warrant a request for recertification from a U.S. service department, and no further development is needed.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification).

As the Appellant has not submitted acceptable evidence of service under 38 C.F.R. § 3.203(a), and as a U.S. service department has not verified the Appellant's service under 38 C.F.R. § 3.203 (c), the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 

The Board therefore concludes that the Appellant is not legally eligible for the Filipino Veterans Equity Compensation Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. 

As the law is dispositive, the claim must be denied because of the lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

The Appellant is not eligible for benefits from the Filipino Veterans Equity Compensation Fund, and the appeal is denied.



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs