Citation Nr: 1313945	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  11-26 332A	)	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.


REPRESENTATION

Appellant represented by:	Lourdes Tancinco, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel

INTRODUCTION

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).

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, Philippines, which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.

The appellant's Virtual VA file has also been reviewed as part of his appeal.

A video-conference hearing was held in February 2013 with the appellant in Oakland, California, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  He had also previously testified at an RO hearing in December 2010.  Copies of both hearing transcripts have been associated with the claims file.

At the aforementioned Board hearing, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration.  Therefore, the Board may proceed.  See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant).


FINDING OF FACT

The service department 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 during World War II.


CONCLUSION OF LAW

The appellant does not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  For example, it has been held not to apply to claims that turned on statutory interpretation.  Smith v. Gober, 14 Vet. App. 227, 231-232 (2000).

The Board notes that the issue in this case turns on statutory interpretation.  See Smith, 14 Vet. App. at 231-232.  Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).  As such, no further action is required pursuant to the VCAA.

Regardless, the appellant was provided an adequate VCAA letter in May 2012.  Previously, a Report of Contact dated in July 2010 also shows that the RO explained to the appellant the reasons for denial of his claim.  The claim was most recently re-adjudicated by means of an August 2012 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet App. 370, 376 (2006) (holding that the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).

The record reflects that at the February 2013 hearing, the Veterans Law Judge set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development required to help substantiate the claim.   These actions satisfied the Veterans Law Judge's duty to fully explain the issue on appeal and suggest the submission of any evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to hearings before the Board).  In addition, the hearing discussion did not reveal any evidence that might be available that had not been submitted.  The Veteran is represented by a private attorney who clearly has actual knowledge of the evidence the Veteran is required to submit in this case, and based upon the argument presented at the hearing, it is reasonable to expect that the Veteran understands what was needed to prevail.  Therefore, any defect with respect to the duties under 38 C.F.R. § 3.103(c)(2) is nonprejudicial.  Notably, neither the Veteran nor his attorney have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.  


Filipino Veterans Equity Compensation Fund

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002).

The particular benefit claimed originated on February 17, 2009, with the American Recovery and Reinvestment Act to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which is charged with providing one-time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009).

An eligible person is defined as any person who served 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 dated July 26, 1941.  That includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from that service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115, 200-202 (2009).

The Act further directs VA to administer the provisions of this section in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided.  Pub. L. No. 111-5, 123 Stat. 115 (2009).

Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department, (2) the document contains needed information as to length, time, and character of service; and (3) in the opinion of VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b) (2012).

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  Moreover, where the United States service department does not certify the claimant's alleged service, VA cannot consider his claim for Veterans' benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997).

The appellant submitted several documents in support of his claim.  These included an application for an Old Age Pension (Veteran), an application for National Service Life Insurance, a certificate of completion from the Military Police Training School, a processing and identification slip dated March 1945, a copy of military orders dated April 1945, a copy of an honorable discharge from the Philippine Army, and various photographs.  The appellant also submitted written statements and offered oral testimony regarding events and circumstances of his service.

In response to the evidence the appellant had submitted concerning his service, the RO contacted the service department and requested verification.  In these requests, the RO included the information he had provided in support of his claim.  However, responses from the National Personnel Records Center (NPRC) dated in November 2009, June 2010, and June 2012 indicated he did not have any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.  Consequently, the RO determined he did not have the requisite service to establish his eligibility for payment from the FVEC Fund.

Notably, the evidence submitted by the appellant was not issued directly by the service department.  This evidence includes documents which refer to service in the United States Armed Forces of the Far East (USAFFE).  However, such documents were provided by the Philippine Army, not the U.S. service department,  and they are therefore inadequate to establish veteran status absent certification by the service department.  38 C.F.R. § 3.203(a).  

The NPRC, which is a military records repository, has duly considered the appellant's application for VA benefits, as well as the supporting evidence, and has certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).

The appellant's representative has argued that the NPRC is not the only valid basis for verification, and noted that a 1973 fire destroyed many records contained at the NPRC which may have served to verify the veteran status of the appellant and others.  However, as noted in the August 2012 supplemental statement of the case, a list of veterans with recognized military service is still available, and the NPRC did not state that the appellant's records were part of those affected by the fire.

The Board thus concludes the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund, and his claim for benefits must be denied.

In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to him and does not question the sincerity of his belief that he is indeed entitled to VA benefits, specifically in the form of payment from this FVEC Fund.  Nevertheless, the Board does not have authority to grant his claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).


ORDER

The claim of entitlement to a one-time payment from the FVEC Fund is denied.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs