Citation Nr: 1313101	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  10-41 375	)	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 Fund.


REPRESENTATION

Appellant represented by:	Eduardo J.F. Abella, Attorney


ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel



INTRODUCTION

The claimant alleges military service as a recognized guerrilla in the Philippines during World War II. 

This matter comes before the Board of Veterans' Appeals (Board) from an August 2009-issued decision by the above Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, that denied the requested benefit. 

Please note 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).


FINDINGS OF FACT

The National Personnel Records Center (NPRC) has certified that the 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

The claimant does not have recognized active military service for the purpose of establishing veteran status or obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2012), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2012). 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duty to notify and assist claimants in substantiating claims for VA benefits is set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).  However, where the law, and not the evidence, is dispositive of a claim, VA has no duty to notify and assist a claimant in substantiating the claim.  Id.  The Court has held that when an interpretation of a statute disposes the issue on appeal, neither VA's duty-to-assist nor duty-to-notify provision is applicable.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). 

Because the law is dispositive in this appeal, the provisions set forth at set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012), do not apply.  Nonetheless, the August 2009 decision, the June 2010 statement of the case and the January 2013 supplemental statement of the case included citations to the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service.  The claimant also received VCAA notice in a letter dated in February 2012.  The Board concludes that no further notification or development of the case or the evidence is necessary for fair adjudication of the claim. 

Under the American Recovery and Reinvestment Act of 2009, a one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  American Recovery and Reinvestment Act of 2009 
§ 1002, Public Law No. 111-5 (enacted February 17, 2009).  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. 

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in this act "prohibit[s] 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 is entitled "Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II".  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 enactment of the Act, submits to the Secretary a claim for benefits under this section.  The application for the claim shall contain such information and evidence as the Secretary may require.  Section 1002(c)(2) provides that, 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. 

Section 1002 (d) provides that an eligible person is 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. 

For purposes of establishing entitlement to VA benefits, 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 under 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 VA, 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 does not meet the requirements of this section, VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c) .

The claimant argues that she served as a guerrilla for the United States Armed Forces in the Philippines during World War II.  She submitted a document from the Philippines Veterans Affairs Office, Department of National Defense, showing that she was receiving "Old Age Pension" from the Philippine Veterans Affairs Office.

The sole determinative question is whether the claimant had recognized service to qualify for the claimed one-time payment from the Filipino Veterans Equity Compensation Fund. 

In April 2009, VA contacted the National Personnel Records Center (NPRC) in order to verify the claimant's service in a branch of the United States military.  In July 2009, the NPRC responded that, "[s]ubject has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces."  The claimant continued to disagree with the RO's findings and submitted further evidence from the Philippine Veterans Affairs Office (not the U.S. Department of Veterans Affairs), that she receives payment from that government as a Veteran of the Philippines.  In September 2012, the RO again requested confirmation from the NPRC as to the status of the claimant as a Veteran.  The NPRC responded in November 2012 that, "[n]o change [is] warranted in prior negative service certification."

Submitted documents that tend to suggest qualifying service do not outweigh the NPRC's denial of certification of the claimant's claimed military service.  The NPRC finding of no service is determinative, and VA has no authority to change or amend those findings.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992). 

The proper course for the claimant, if she believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits from the United States, administered by VA. VA is bound to follow the certifications by the service departments with jurisdiction over United States military records. 

After considering all the evidence in this case, the Board must conclude that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the military services of the United States.  The claimant may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. 


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs