Citation Nr: 1313646	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  10-49 644	)	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.



ATTORNEY FOR THE BOARD

N. T. Werner, Counsel




INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The Board has advanced this appeal on the docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). 

In January 2013, the RO received for the third time a reply from the National Personnel Records Center (NPRC) regarding the claimant not having any qualified service.  The Board finds this third NPRC reply is duplicative of the two earlier replies received by the RO from the NPRC.  Therefore, the Board finds that a remand for a supplemental statement of the case is not required.  See 38 C.F.R. § 19.31 (2012)


FINDING OF FACT

The 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 Armed Forces of the United States.


CONCLUSION OF LAW

The criteria for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

However, the United States Court of Appeals for Veterans Claims (Court) has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).  Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  See VAOPGCPREC 5-2004 (June 23, 2004). 

For reasons that will be explained in more detail below, the Board finds that there is no legal entitlement to the benefits claimed.  Thus, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Accordingly, the Board finds that no further discussion of the VCAA is required because any deficiencies of notice or assistance are moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 

The Claim

Under American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund.  See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009) (Act).  Payments for eligible persons will be in the amount of $9,000.00 for non-United States citizens and $15,000.00 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 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 that Act. 

Section 1002 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  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. 

The appellant asserts he meets the above criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.  

In support of his claim, the claimant provided VA with a Special Order Number 1, dated March 19, 1946, from Company L, 62nd Infantry Regiment, PA; a Special Order Number 70, dated April 11, 1946, from Headquarters, 62nd Infantry Regiment, PA; and an Affidavit, dated March 2, 1946, from Mateo Malasarte.

The Special Order Number 1, lists the appellant's name as one of a number of men being promoted to Private First Class with 62nd Infantry Regiment.  The Special Order Number 70, lists the appellant's name as one of a number of men being assigned to Company L, 62nd Infantry Regiment.  Additionally, the Affidavit reports that the signatory served with the claimant, a Private, when they served with E Company, 2nd Battalion, 105th Infantry and the appellant joined the guerrillas in September 1942.

The claimant also filed various statements in support of his claim in which he argued that he had qualifying service.

The RO submitted the claimant's pertinent information to the NPRC who certified in January 2010 and again in December 2012 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.  As noted in the Introduction, the same information was provided in January 2013 from NPRC.

Moreover, the Board finds that the documentation provided by the claimant fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, even if it was consistent as to the nature of his service, as it is not official documents of the appropriate United States service department, but rather documents from the Philippine government.  Likewise, the Board does not find the writings from the claimant satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because they are also not official documents of the appropriate United States service department.  As such, they 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. 

Because the claimant has no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund are not met, and the claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).  

ORDER

Basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs