Citation Nr: 1312657	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  10-38 139	)	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.


WITNESSES AT HEARING ON APPEAL

The appellant and his grandson


ATTORNEY FOR THE BOARD

K. Neilson, Counsel



INTRODUCTION

The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, between 1942 and 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In April 2012, the appellant testified at a Board hearing before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is associated with the claims file.

In June 2012, the Board remanded the instant matter for further development.  Following completion of the requested action, as well as a continued denial of the appellant's claim, his appeal was returned to the Board for further appellate review.

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 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 service requirements for eligibility for a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act of 2009, § 1002, Pub. L. No. 111-5; 38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  As will be discussed in further detail below, the Board finds that under the facts of the present case, the law is dispositive of the issue.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2000) (VCAA has no effect on appeal limited to interpretation of law) aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  As the law is dispositive in the instant claim, the VCAA is not applicable.

II.  Analysis

In the instant case, the appellant is seeking compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 
§ 1002 (to be codified in Title 38 of the United States Code: Veterans' Benefits).  Section 1002 (c)(1) provides that the Secretary 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 this Act, submits to the Secretary a claim for benefits under this section.  American Recovery and Reinvestment Act 
§ 1002(c)(1).  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.

For eligible persons who accept a payment from the FVEC Fund, such 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 this Act.

Section 1002(d) defines the term "eligible person" as any person 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.  Id. at § 1002(d).

Under 38 C.F.R. § 3.203(a), 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) (2012).

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, 749 (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, 532 (1992).  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, supra.  Thus, in cases where verification of the claimed service in the Philippine Commonwealth Army is required, absent documentation or certification of such service by the relevant service department, a claimant would not be eligible for VA benefits based on such service.  Soria, supra; 38 C.F.R. § 3.203.

In his timely February 2009 claim, the appellant indicated that he had served in the United States Army in "25 Division 6th Army" from 1942 to 1945.  The appellant indicated that he went by the name of "Juan Tian Chiok" and/or "Huan Tian Chio."  Based on the information provided by the appellant, the RO requested verification of the appellant's service from the NPRC.  In a response dated in August 2009, the NPRC 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.  

Thereafter, the appellant submitted additional documents purporting to show the requisite service.  These include a photocopy of a Certificate of Discharge from the Commonwealth of the Philippines, Philippine Army, and several documents indicating that the appellant was the recipient of various military awards.  The matter was again referred to the NPRC, and in March 2012 the NPRC again stated that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. 

Notably, the NPRC based its certifications on searches under two different names - the appellant's current name (Juan Tian Chiok) and the name he served under (Huan Tian Chio).  However, as pointed out by the Board in its June 2012 remand, the Certificate of Discharge from the Commonwealth of the Philippines contained a third name (Tian Chuo Haun).  The Board thus remanded the matter remanded for the AOJ to attempt to seek a certification of the appellant's service from the NPRC using this third name.  

Upon remand from the Board, the appellant resubmitted photocopies of the documents previously provided.  In November 2012, the AOJ again requested verification of the appellant's service from the NPRC, which request referenced all three of the appellant's names.  The NPRC responded in January 2013, stating that no change was warranted in the prior negative service certification.

In consideration of the evidence of record, the Board concludes that entitlement to a one-time payment from the FVEC Fund is not warranted as a matter of law because the appellant does not have qualifying military service.  Notably, none of the documents submitted by the appellant satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department.  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 compensation from the FVEC Fund.  Further, all information submitted by the appellant has been referred to the NPRC for review and the NPRC has declined to certify the appellant's claimed service on three separate occasions.  Although the appellant contends that he did indeed have the requisite service to be eligible for a one-time payment from the FVEC Fund, the lack of certification from the NPRC is binding on VA.  Accordingly, because NPRC failed to certify that the appellant had requisite service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant has not achieved veteran status for purposes of entitlement to payment from the FVEC Fund.  Entitlement to a one-time payment from the FVEC Fund is therefore denied as a matter of law.  See Sabonis, 6 Vet. App. at 430.


ORDER

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



____________________________________________
REBECCA N. POULSON
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs