Citation Nr: 1313316 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-18 502A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant avers that he is a guerrilla veteran of World War II. The record indicates that the appellant has no recognized service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). 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 appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 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). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been satisfied in this case. The Board notes that a VCAA letter was issued to the appellant in September 2012. Notwithstanding, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the FVEC fund is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the FVEC fund must be denied as a matter of law and VA has no further duty to notify or assist the appellant in this matter. Entitlement to Compensation from the FVEC Fund The President of the United States signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, authorizing the release of a one-time, lump-sum payment to eligible WWII Philippine veterans. These payments are to be made through the U.S. Department of Veterans Affairs. American Recovery and Reinvestment Act (ARRA) § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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. See ARRA § 1002(d), Pub. L. No. 111-5 (enacted February 17, 2009). In this case, the National Personnel Records Center (NPRC) in October 2009 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. Based on receipt of additional evidence from the appellant, the RO requested that the NPRC again review the claim. In January 2013, the NPRC indicated that there was no change warranted in the prior negative service certification. Notably, the appellant has not submitted a DD Form 214 (or date appropriate form), a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1). In support of his claim to entitlement, the appellant submitted statements indicating that he served in the Recognized Guerrilla along with various other documents: Affidavits from individuals attesting to the appellant's guerrilla service; certification from the Philippine Department of National Defense, dated in February 1958, indicating that the Veteran had guerrilla service; and a photograph. The Board acknowledges the appellant's belief that he has recognized service, but there is no indication that he has additional evidence or information that may support this claim. The Board has carefully reviewed the appellant's evidentiary submissions. However, the Board finds that these documents fail to 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, but rather documents from the Philippine government and individuals known to the appellant. 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 the one- time payment from the Filipino Veterans Equity Compensation Fund. The 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. The Board acknowledges the appellant's argument that VA should essentially ignore the NPRC certified finding. However, the Board is not free to ignore the certification of the NPRC. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). Recognition of service by the Philippine Government is not sufficient for benefits administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. Based upon the record in this case, 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 appellant may not, therefore, be considered a veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Accordingly, the claim is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs