Citation Nr: 1314469	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  10-36 131A	)	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.


ATTORNEY FOR THE BOARD

Sarah Richmond, 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 a 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.


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 & 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.

Filipino Veterans Equity Compensation Fund

The appellant, in written statements before the Board, contends that he had recognized service in the Philippine Commonwealth Army, from October 1941 to May 1946.  He asserts that he is entitled to a one-time payment from the 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).

In this case, the appellant submitted multiple documents in support of his claim.  He had previously sought entitlement to VA benefits and was denied by the RO in July 1991 and April 2000.  The Board also confirmed the RO's April 2000 denial in a May 2001 decision finding that the appellant had not submitted new and material evidence to reopen a claim for basic eligibility for entitlement to VA benefits.  Over the course of the appellant's claims, the documents he has submitted include an Affidavit for Philippine Army Personnel and certifications from the Armed Forces of the Philippines which noted his status as a guerrilla.   He also submitted a Joint Affidavit from two individuals who indicated that they served with the appellant during World War II joining the Guerrilla Forces in Northern Luzon, Philippines.  They further recalled that the appellant was inducted into "H" Co., 2nd Bn. 22nd Inf. As PVT, [redacted] USAFIP-NL under Capt. [redacted], Co., 2nd Bn. 22nd Inf.; and later assigned to "E" Co., 2nd Bn. 22nd Inf, where he was honorably discharged in May 1946 at Camp Barientos, Luna, La Union, Philippines.  

In addition, the appellant submitted copies of certifications from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, which certified that the appellant was a veteran of World War II/ Philippine Revolution, who served with the 21st Div. PA.; a copy of his application to the Department of National Defense for old age veteran's pension; a copy of an identification card from the Philippines Office of Senior Citizens Affairs; and an identification card listing him as a life member of the Veterans Federation of the Philippines.

In response to the evidence submitted by the appellant, the RO contacted the service department on multiple occasions and requested verification of the appellant's service, including after the most recent Joint Affidavit was submitted.  In these requests, the RO included the information the appellant had provided in support of his claim.  However, responses from the National Personnel Records Center (NPRC) dated February 1991, June 1991, June 2010, and December 2012, indicated that the appellant 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 that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and denied his claim.

NPRC has duly considered the appellant's application for VA benefits and 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 Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Thus, his claim for benefits must be denied.

In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the Filipino Veterans Equity Compensation Fund.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs