Citation Nr: 1312940	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  12-03 198	)	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 December 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In June 2011, the Appellant submitted a VA Form 21-22 as a means of establishing representation by a Service Organization (although his organization of choice was not an accredited VA Service Organization).  The Appellant signed the VA Form 21-22 with a thumbprint, but without any indication that his signature was witnessed.  In October 2011, the RO notified the Appellant that his signature by thumbprint must be witnessed and requested that he submit the signatures of two disinterested witnesses.  The Appellant did not respond to request, and the Appellant is deemed to represent himself.


FINDING OF FACT

The National Personnel Records Center, the federal agency charged to verify service for a service department, 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.  The Appellant asserts that he was a Recognized Guerilla from August 1942 to May 1945. 

As proof of qualifying service, the Appellant has submitted copies of an affidavit completed by the him in September 1990 and a statement by him in March 1992, regarding his service in a guerilla unit (Zabat Unit) in the province of Albay from August 1942 to May 1945; several affidavits from members of the Zabat Unit, who attested to the fact that the Appellant was inducted into the unit in March 1943; and the Appellant's application to the Philippine Veterans Affairs Office of the Republic of the Philippines, Department of Defense, in October 1990 for pension for his service as a guerilla in World War II.

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 certified in December 2011 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 December 2011.

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).  







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