Citation Nr: 1313807	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-33 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The appellant alleges that he had recognized guerrilla service with the U.S. Armed Forces, Far East (USAFFE), in the Philippines during World War II.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

The issue of entitlement to a nonservice-connected pension has been raised 
by the record, but does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

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 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. §§ 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

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.

The VCAA does not affect matters on appeal when the issue is limited to statutory or regulatory interpretation.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (interpreting that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed).  Nevertheless, the appellant was provided notice in a June 2011 letter, and also submitted documents to support his claim during the course of the appeal.  There is no dispute as to the facts involved, and this is a matter where the law and not the facts are controlling.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Pursuant to the holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the RO in the context of the instant appeal has sought and obtained further input from the NPRC which has reiterated that the appellant is without the requisite military service as to render him an eligible person under the American Recovery and Reinvestment Act for a one-time payment from the Filipino Equity Compensation Fund.  Thus, there is no possibility that any additional notice or development would aid in the substantiation of his claim.  38 U.S.C.A. §§ 5103, 5103A.

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Under the American Recovery and Reinvestment Act, enacted February 17, 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 (Act) § 1002, Pub. L. No. 111-5.  Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.

Section 1002 of the Act addresses payments to eligible persons who served in the United States Armed Forces in the Far East (USAFFE) during World War II, providing in § 1002(c)(1) 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 the enactment of this Act (February 17, 2009, through February 16, 2010), 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.  

An eligible person under Section 1002(d) of the Act 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 RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought.  The NPRC reported in March 2002 and August 2011 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.  

The appellant submitted a December 1945 Affidavit for Philippine Army Personnel stating that he joined the 6 MD Guerrillas in October 1942.  From October 1942 to June 1944 he was assigned to HQ & HQ Ser. Company 1st Battalion, from June 1944 to February 1945 he was in the 63rd Infantry Motor Transport, and from February 1945 to May 1945 he was assigned to the 1st Company, 1st Battalion, 62nd Infantry Regiment.  In July 1947 the appellant requested that he be included in the recognized rosters of the 6th MD (Panay Guerillas) which he joined in October 1942 and was processed from in May 1945.  A captain wrote in a July 1947 affidavit that he was the commanding officer of the 6th MD and that the appellant was assigned to the 6th MD Motor Transport Company (Panay Guerillas) and was transferred to the Hq & Hq Service Company, 1st Battalion, 62nd Infantry Regiment. 

In a March 1963 memorandum the appellant requested confirmation of his October 1942 to March 1945 guerilla service.  An August 1966 Statement of Service from the Philippine Army and a similar document from June 1967 state that the appellant had "Constructive Enlistment" from October 1942 to March 1945.  He was processed in May 1945 and was honorably discharged in March 1946.  The appellant then enlisted in April 1947.  A May 1977 statement from the Philippine Veterans Affairs office states that the appellant served in World War II with the USAFFE guerillas.    

An affidavit signed by two individuals in January 2009 and April 2009 respectively gives different a spelling of the appellant's name from his service in the USAFFE.  It is noted that the RO attempted to verify the appellant's service with the NPRC with both spellings in August 2011 and that no recognized service was found under either spelling.

A September 2009 identification card from the Philippine Veterans Affairs Office states that the appellant is a World War II veteran.  A November 2009 certification from the Armed Forces of the Philippines states that the appellant was in the 6th MD guerillas (F-23) from October 1942 to May 1945.  He received arrears pay for October 1942 to March 1945 and current pay from March 1945 to December 1945.   

In July 2012, in conjunction with a different claim, the appellant submitted additional documentation.  In addition to duplicates of documentation already submitted, included was documentation from the Philippine government stating that the appellant served in the Philippine Army from October 1942 to February 1967.  A May 1963 affidavit states that the affiant was in the Hq & Hq Svc. Company 62nd Infantry Regiment and the appellant was in the regiment from October 1942 to December 1945.  This information is duplicative and/or cumulative of information previously provided to the RO and supplied to the NPRC for verification purposes.  As such, the Veteran is not prejudiced by consideration of this duplicative and cumulative evidence in the first instance.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, because they are not official documents of the appropriate United States service department, but rather are documents generated by the Philippine government.  As such, those documents may not be accepted by the RO or 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 appellant argued in his November 2011 VA Form 9 that his December 1943 Form 23 satisfied the requirement for United States service department verification.  The Board notes that the document that the appellant references, the Affidavit for Philippine Army Personnel, does not satisfy the requirement for United States service department verification.  

As noted, 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.  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).  The proper course for the appellant, if he 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.  The submitted oaths are also not sufficient for benefits from the United States, 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 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.




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

Department of Veterans Affairs