Citation Nr: 1313952	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  12-06 522	)	DATE
	)
	)

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


THE ISSUE

Eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel










INTRODUCTION

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, that the appellant had no legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 

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) 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.


CONCLUSION OF LAW

The service requirements for eligibility to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met.  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

The Board considered whether the notice provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002) are applicable to this claim.  The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  See Dela Cruz v. Principi, 15 Vet. App. 143   (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that 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).  The Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. 

Under the American Recovery and Reinvestment Act, 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 § 1002, Pub. L. 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 addresses 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 the enactment of this 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 (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 cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA.  See 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F. 3d at 749.  In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  Soria, 118 F. 3d at 749. 

For purposes of establishing entitlement to VA benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department under 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 the VA, the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).  When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department.  38 C.F.R. § 3.203(c). 

In March 2009, the appellant filed the present claim, asserting that he served with Guerilla Company, "B", 1st Bn. 2nd Pampanga Regiment, from January 23, 1944 to December 2, 1945.  He submitted the following documents in support of his claim:  a copy of Statement of Service from the Ministry of National Defense, Philippine Veterans Affairs Office; a copy of Application for Old Age Pension, from the Department of National Defense, Phillippine Veterans Office; and copies of identification cards from the Republic of the Philippines Office of Senior Citizens Affairs and Republic of the Philippines Social Security System.

The appellant did not submit a DD 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge in order to establish his veteran status.  38 C.F.R. § 3.203(a).  Accordingly, verification of veteran status is required from the service department.  38 C.F.R. § 3.203(c).      

In November 2009, the RO requested that the NPRC verify the appellant's service. In December 2009, the NPRC responded that the subject had "no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." 

In August 2011, the RO again requested that the NPRC verify the appellant's service status.  The following documents were submitted by the RO to the NPRC:  certification from Philippine Veterans Affairs Office; copy of application form for benefits from Philippine Veterans Affairs Office; and a copy of Statement of Service from Philippine Veterans Affairs Office 

In September 2011, the NPRC again responded that the subject 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 concludes that entitlement to Filipino Veterans Equity Compensation Fund is not warranted because the appellant does not have qualifying military service as a matter of law.  As discussed above, on two separate occasions, the NPRC has specifically certified that the appellant had no service as a member of the Philippine Commonwealth Army or recognized guerrillas in the service of the United States Armed Forces.  The evidence submitted by the appellant, recounted above, fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service as none are official documents of the appropriate United States service department.  These records have no bearing on the issue at hand, as it is only the service department's decision on such matters that is conclusive and binding on the VA.  In this case, the applicable department is the U.S. Army.  The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving Filipino Veterans Equity Compensation Fund as administered under the law for VA benefits.  See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  As discussed above, in such circumstances, the applicant's only recourse lies within the relevant service department, not with VA.

The Board need not address whether the appellant performed military service in the Philippine Army but only whether any service was recognized by the U.S. service department as having been performed in service to the United States. In this case, the NPRC, a division of the National Archives and Record Administration, holds the archived records of military service for the applicable service department. NPRC has determined 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.  Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  Because the appellant's service does not meet the criteria described, the appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation Fund, and the claim must be denied based upon a lack of entitlement under the law. 


ORDER

The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund. 




____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs