Citation Nr: 1314335	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  11-23 890	)	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 (FVEC) Fund.



ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel




INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  

In April 2013, the Acting Chairman of the Board advanced this appeal on the Board's docket on his own motion, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).


FINDING OF FACT

The National Personnel Records Center (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 United States Armed Forces.  


CONCLUSION OF LAW

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009);  38 C.F.R. § 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).

Here, as discussed below, there is no dispute as to the pertinent facts, such as the name or unit of service for the claimant.  The claimant has not made the RO or Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  

Pursuant to both 38 C.F.R. § 3.203(c) and VA's statutory duty to assist, new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review.  Here, the RO has submitted all pertinent identifying information for verification to the NPRC.  

The Board finds that there is no further assistance that would reasonably be expected to aid in deciding the claim.  Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits, including that under the FVEC Fund.  

II.  Analysis

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009).  

For eligible persons who accept a payment from the FVEC Fund, the 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 the Act.  Id, § 1002(h).  VA 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 the Act, submitted to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id, § 1002(c).  

An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from such service under conditions other than dishonorable.  Id, § 1002(d).

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. § 3.203(c).  See Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department and not with VA.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service.  38 C.F.R. § 3.203; Soria, supra.

By way of history, in a claim received in February 2009, the claimant provided identifying information and contended that he was eligible for the one-time payment from the FVEC fund as a result of service in the Philippine Commonwealth Army.  He identified his unit as the following:  A Co. 103 BCT 91st Inf.  The claimant's information was submitted to the NPRC.  In November 2009, the NPRC notified the RO that the claimant 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 a January 2010 decision, the RO denied the claim.  

In February 2010, the RO received from the claimant an "Affidavit for Philippine Army Personnel" dated in March 1946.  The affidavit reflects an "X" placed next to the notation "3. Civilian guerrilla."  There was not an "X" placed next to either "1. USAFFE (Regular) or Reservist" or "2. USAFFE-Guerrilla".  (The acronym USAFFE stands for United States Armed Forces of the Far East.)  Additional information associated with the affidavit includes that the claimant had joined a guerrilla unit in January 1944 and been assigned to the following: K Co. 3rd Bn. 2nd Pangasinan Regiment.  The claimant also was noted to have served with the "632nd T.D. Bn." and with the "152nd Inf. 38 Div."  Also, the affidavit reflects under the section "Monies received: (1) Military services, USAFFE", that the claimant apparently received money for a period of service from September 8, 1945 to January 31, 1946.  

The RO submitted the information received from the claimant to the NPRC.  In June 2010, the NPRC again notified the RO that the claimant 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 a June 2010 decision, the RO continued the denial of the claim.  

In September 2010, the RO submitted the claimant's identified unit information to the NPRC, and also identified the claimant as a member of the USAFFE and not as a guerrilla, as he had been previously identified.  Later in September 2010, the NPRC notified the RO that the claimant 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 February 2011, the claimant submitted a number of additional military-related documents to the RO associated with his service.  In particular, an "86th Infantry Division Area Command" discharge slip, dated in February 1946, and associated with apparent demobilization of various units by the Philippine Army, the claimant's guerrilla unit was identified as "K Co. 3rd Bn. 2nd Pang. Regt."  The date of recognition of the guerrilla unit was noted as March 15, 1945.  A Veterans Federation of the Philippines-Certificate of Registration reflected the "Category of Veteran" (i.e., the claimant) as a recognized guerrilla and not with the USAFFE.  An "Individual Reservist's Data Sheet" as well as a "Veterans Claims Commission" application also recognized the claimant as having been a guerrilla and identified him as not having been with the USAFFE.  

Thereafter, in April 2011, the RO submitted the additional documentation to the NPRC.  In May 2011, the NPRC notified the RO that no change was warranted in the prior negative certification.  

Here, the claimant has submitted statements and documentation pertaining to his military service.  However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  On the contrary, that evidence was not issued by the service department (e.g., the NPRC) nor does it contain the necessary information to establish entitlement to the benefit sought.  Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the FVEC Fund.  

The Board has considered the claimant's contentions as well as the submitted evidence.  The Board is mindful that the title of Section 1002 of the American Recovery and Reinvestment Act is "PAYMENTS TO ELIGIBLE PERSONS WHO SERVED IN THE UNITED STATES ARMED FORCES IN THE FAR EAST DURING WORLD WAR II."  Under Section 1002(a)(3), the following history is noted,

The regular Philippine Scouts, the new Philippine Scouts, the Guerilla Services, and more than 100,000 members of the Philippine Commonwealth Army were called into the service of the United States Armed Forces of the Far East on July 26, 1941, by an executive order of President Franklin D. Roosevelt.   

As noted above, except for the Affidavit for Philippine Army Personnel, the military-related documents submitted by the claimant do not reflect any USAFFE service.  Furthermore, the Affidavit for Philippine Army Personnel offers conflicting information on this issue of service with USAFFE, reflecting no such service on the first page of the document and then later referencing money received, apparently through USAFFE service, during the period September 1945 to January 1946.  

With respect to the above, the NPRC has duly considered the claimant's application for the FVEC benefit and reviewed the above discussed documents submitted by the claimant.  It has certified that the claimant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  The Board emphasizes that it is bound by that certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA).  

Therefore, the Board finds that the claimant has not met the basic eligibility requirements for a one-time payment from the FVEC Fund.  In light of this fact, there is unfortunately no legal basis on which the claimant is entitled to one-time payment from the FVEC Fund.  As the law, and not the evidence, is dispositive in this case, the claim on appeal must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The claim for a one-time payment from the FVEC Fund is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs