Citation Nr: 1313299 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-23 736A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) 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 David A. Brenningmeyer, Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board) arose from a May 2010 decision in which the RO denied the appellant's claim for a one-time payment from the FVEC Fund. In June 2010, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2011, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2011. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the appellant's claim. A review of the sole document in the electronic file reveals that it is duplicative of the evidence in the paper file. In April 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). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. 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 & West Supp. 2012); 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 FINDINGS AND CONCLUSION I. Duties 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). In connection with the claim on appeal, 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. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As will be explained below, the claims lack 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). 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; 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 (2012); Soria, supra. By way of background, the evidence reflects that the appellant filed a claim for VA compensation and pension in May 1998. In his application for benefits, he asserted, among other things, that he had served as a sergeant with 66th Inf USAFIP-NL from April 1942 to June 1946, and that he had been a prisoner of war (POW) of the Japanese Government, but had escaped. In connection with the May 1998 claim, the appellant submitted a number of documents, including an October 1997 certification from the Armed Forces of the Philippines, Office of the Adjutant General (OTAG), reflecting that, according to records available in that office, the appellant had served as a sergeant with K Co 15th Inf USAFIP NL, and that he had been wounded in action (WIA), with June 29, 1945 as the date of casualty. The appellant also submitted a January 1998 medical certificate from the Integrated Provincial Health Office, reflecting that he had been treated since May 1996 for residuals of an injury sustained during World War II; a June 1998 POW Questionnaire, wherein he denied he had been a POW; a July 1999 certification from OTAG reflecting that, according to records available in that office, he had served as a sergeant with "K" Co, 3rd Bn, 15th Inf USAFIP NL, and that he had been WIA, with June 29, 1945 as the date of casualty; and a Guerilla Verification Slip from the Non-Current Records Division, OTAG, reflecting that he served as a sergeant in K Co, 15th Inf, USAFIP NL, and that his name appeared in a guerilla roster. In October 1999, the RO requested verification of service by the applicable United States service department using the spelling of the appellant's full name, his place and date of birth, reported dates of service, and the unit designation provided in his supporting documents. In November 1999, the NPRC responded 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 March 2009, the appellant filed a timely claim for a one-time payment from the FVEC fund based on service as a recognized guerilla. In his application, he provided identifying information (though without a service number), and indicated that he had had service in K Co, 15th Inf, USAFIL NL, beginning in June 1945. In connection with the March 2009 claim, the appellant submitted a duplicate of the October 1997 certification from OTAG. He also submitted several new documents, including a copy of a November 1993 identification card issued by the Republic of the Philippines, Office of Senior Citizens' Affairs; a 1997 Application for Old Age Pension (Veteran), to be filed with the Republic of the Philippines' Veterans Affairs Office, wherein he affirmed that he had had service with the United States Army Forces in the Far East (USAFFE), having served as a sergeant with K Co, 15th Inf, USAFIL NL, with a discharge date in June 1945; and a November 1999 certification from the Philippine Veterans Affairs Office reflecting that his claim for old age pension had been recommended for approval. In March 2010, the RO again requested verification of service by the applicable United States service department using the spelling of the appellant's full name, his place and date of birth, reported dates of service, and the unit designation provided in his supporting documents. In its request, the RO noted that the appellant's name was listed in the Reconstructed Recognized Guerilla Roster maintained by the RO. In April 2010, the NPRC again responded 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 June 2011, the appellant submitted further documents in support of his appeal, including an Application for Educational Benefits, produced by the Philippine Veterans Affairs Office, to be filed on behalf of his granddaughter; and a May 2011 document from the Philippine Veterans Affairs Office (PVAO (RD) Form No. 002). However, neither of those documents contained any new or additional information pertaining to the appellant's purported service, so as to require further review by NPRC. See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). As noted above, the appellant has submitted statements and documentation pertaining to his reported service in the recognized guerillas in an effort to support his claim. However, none of that documentation qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203 (2012). 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. NPRC has duly considered the appellant's application for VA benefits, along with all the material he has submitted, and has twice certified the he 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 Board is bound by that certification. See Capellan v. Peake, supra (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). The Board is sympathetic to the appellant's situation, and does not question the sincerity of his belief that he is entitled to the benefit he seeks. However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific: It must be shown by verification of the United States service department that the claimant has qualifying service. The Board is bound by the law as written. As, on these facts, 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. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs