Citation Nr: 1312923	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11-29 846	)	DATE
	)
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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 a January 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).


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 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), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  

Otherwise, as will be explained below, the claim lacks legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).  

Nonetheless, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim.  In this regard, in a November 2010 letter, the RO requested from the appellant a copy of "your affidavit for Philippine Army Personnel, PA AGO Form 23" (hereinafter Form 23).  The RO notified the appellant that the document was needed by the NPRC in order to assist in verifying the appellant's service.  In the letter, the RO also provided an address to the facility (a non-federal facility) where the appellant could obtain a copy of the document if he did not have a copy.  In December 2010, the appellant submitted a number of documents related to his military service.  None of these documents was the requested Form 23.  

In July 2011, the RO issued the appellant a VCAA notice letter with respect to his claim.  The letter, in particular, notified the appellant that VA would obtain relevant records not held by a Federal agency that the appellant adequately identified and authorized VA to obtain.  In an August 2011 statement of the case (SOC), the appellant was notified of the RO's earlier request that he submit Form 23.  Following the July 2011 VCAA notice letter and August 2011 SOC, no Form 23 was received by the RO nor did the appellant request the RO obtain Form 23 for him.  

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).

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.

In a claim received in February 2009, the appellant 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 "B Co., MP BN USA FIP-NL/REGT HQ 121st INF."

The appellant's information was submitted to the NPRC.  In October 2009, the NPRC notified the RO 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.  The RO denied the appellant's claim in January 2010.  

The appellant appealed the RO's January 2010 decision and his notice of disagreement (NOD) provided additional service information.  This included a different unit history.  The unit was identified as "D Co., 121st Infantry Bn. Northern Luzon Guerilla Forces."  In light of the additional information, the RO again requested verification of the appellant's service through the NPRC, including with its request those documents submitted by the appellant.  In September 2010, the NPRC requested that the RO furnish Form 23 from TAG-PA (The Adjutant General of the Philippine Army).  As noted above, in November 2010, the RO contacted the appellant and requested he submit a copy of his Form 23.  

Thereafter, in December 2010, the appellant submitted a number of documents to the RO some of which were related to his service with the U.S. Armed Forces in the Philippines-Northern Luzon (USAFIP-NL).  In a document with an identifier "AGNR2", dated in April 1997 (noted as from General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General), the appellant's unit was noted as "B Co., MP Bn USAFIP-NL" and his organization as "Regt Hq 121st Inf."  The appellant was noted to have been inducted in January 1944 and discharged in November 1945.  

As noted above, in July 2011, the RO issued the appellant a VCAA notice letter with respect to his claim.  Thereafter, the RO again requested verification of the appellant's service through the NPRC, including with its request those documents submitted by the appellant.  In August 2011, the NPRC notified the RO that no change was warranted in the prior negative service verification.  

Here, the appellant has submitted statements and documentation pertaining to his reported service in the USAFIP-NL in an effort to support his claim.  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, 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.  Otherwise, the appellant's service has not been verified by the service department, and the appellant failed to provide that evidence (Form 23) requested by the NPRC, that may have had a bearing on his claim.  

The Board thus finds that the NPRC has duly considered the appellant's application for VA benefits and certified that the appellant does 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 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).  Accordingly, there is no legal theory that would permit a one-time payment from the FVEC Fund, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

The claim for a one-time payment from the FVEC Fund is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs