Citation Nr: 1313870 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-36 178A ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The appellant served in the Philippine military during the Second World War; however, he has no qualifying service with the United States Armed Forces. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board has reviewed the appellant's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In November 2011, the Board remanded the issue on appeal in order to secure service department verification of the appellant's claimed service in light of additional information and documentation added to the claims file in June 2011. Thereafter, the issue was to be readjudicated. Following the completion of the ordered development and the subsequent readjudication, the issue now returns to the Board for appellate review. The Board finds that there has been compliance with the November 2011 remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Due to the appellant's advanced age, 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 1. There is no dispute as to the facts pertinent to resolution of this appeal. 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 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 & West Supp. 2012); American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The question currently before the Board is whether the appellant has qualifying service to establish eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund. The record shows that the NPRC reported 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. Because qualifying service and how it may be established are governed by law and regulations and the service department's certification is binding, the Board's review is limited to interpreting the pertinent law and regulations. Where, as here, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004. Nonetheless, the Board notes that the RO provided the appellant with a copy of the January 2010 decision, the August 2010 Statement of the Case, and the April 2011 and December 2012 Supplemental Statements of the Case, which included a discussion of the facts of the claim, the laws and regulations pertaining to eligibility for benefits under the Filipino Veterans Equity Compensation Fund and verification of military service, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. The appellant has also had a meaningful opportunity to participate in the processing of the claim. In addition to the information the appellant provided on the February 2009 VA Form 21-4138, the appellant has submitted a number of documents in support of the claim, to include a P.A. A.G.O. Form 55 showing service in the Commonwealth of the Philippines Philippine Army from August 1944 to June 1946, Veterans Federation of the Philippines Certificate of Participation, application for Old Age Pension from the Philippine Veterans Affairs Office (PVAO) dated in November 1990, affidavits from fellow service members dated in January 1946 and April 1946, a certificate from a lieutenant in the 2nd Infantry, a confidential letter to the appellant regarding his assignment in service, Special Orders Number 99 for 2nd Replacement Battalion APO 70, Special Order Number 1 Extracts, Checklist for Requirements for Philippine Veterans Administration, War Department Form Number 337a (Voucher for Pay and Allowances of Individual Enlisted Men), Acknowledgment from the Republic of the Philippines for recognition of rights to back pay, Award from the Office of the President of the Republic of the Philippines listing service decorations, PVAO Letter Form Number 8-6 dated in February 1974, Enlistment Record, Enlistment Record/Final Indorsement, PVAO-4, Statement of Monies Received, Affidavits for Philippine Army Personnel, the September 2010 Certification of service from the General Headquarters of the Armed Forces of the Philippines Office of the Adjutant General, Service Record, and written statements from the appellant. The appellant has not identified any pertinent evidence which should be considered that has not already been provided during the course of the appeal. In light of the foregoing, the Board concludes that no further notification or development of evidence is required. No useful purpose would be served in remanding this matter for yet more development. The Board will proceed with appellate review. Analysis of Eligibility for FVEC One-Time Payment Under the American Recovery and Reinvestment Act of 2009, a new 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. In this case, the appellant alleges that he has recognized guerilla service in the U.S. Armed Forces. During the course of the appeal, the appellant has submitted a number of documents and provided certain information (e.g., date and place of birth, service number, unit in which he served, dates of service, etc.) necessary for verification of his service on the application for the one-time payment from the Filipino Veterans Equity Compensation Fund. See February 2009 VA Form 21-4138. The record shows that the appellant submitted documents along with the February 2009 claim, and those records were forwarded to the NPRC for service verification. In August 2009, the NPRC certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The appellant submitted additional documents in April 2010, along with his notice of disagreement. Those records were also forwarded to the NPRC, which again certified in July 2010 that the appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. Based on information contained in the October 2010 VA Form 9, indicating that the appellant's name may have been misspelled in some records, another certification was requested. In February 2011, the NPRC again certified that the appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. In June 2011, the appellant submitted additional documents not previously of record showing additional identifying information. Among the documents was a record entitled Walter Cushing Guerillas - Army of the United States - Certificate of Service, showing that the appellant served as Regt'l. Comdr. 1st Regt. 1st Div. MLA. & Subrds. The document indicates that the appellant served in the Walter Cushing Guerillas attached to the 121st Infantry, P.S., Army of the United States from June 4, 1942 to November 9, 1945. In November 2011, the Board remanded the claim in order for the new information to be considered (i.e., a different service organization). Pursuant to the Board's prior remand order, the additional records were forwarded to the NPRC for service verification. The request for information included the additional service organization for which appellant provided evidence, as well as a list of additional names under which the appellant may have served, including the alias, B.V. The NPRC responded that there was no change warranted in the prior negative certification. Upon review of the evidentiary record, the Board notes that the appellant has not submitted a DD Form 214, 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). The documents submitted during the course of the appeal establish that the appellant had military service during the period from August 1944 to June 1946 and is a veteran of the Philippine government. The documents are not sufficient 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. As such, the documents may not be accepted 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. 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 administered by VA. The Department of Veterans Affairs 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; therefore, he may not be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. Because the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, because the law, rather than the facts of the case, is controlling, the provisions of 38 U.S.C.A. § 5107(b) are not for application. ORDER Legal entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs