Citation Nr: 1314486 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 11-33 411 ) 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 B. Elwood, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In that decision, the RO denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In April 2013, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. The documents in this file have been reviewed and are duplicative of the evidence in the paper claims file. FINDING OF FACT The appellant is not an individual or a member of a group considered to have performed active military, naval, or air service. CONCLUSION OF LAW The appellant does not have status as a veteran for purposes of his claim for a one-time payment from the Filipino Veterans Equity Compensation Fund, and does not meet the requirements of basic eligibility for these VA benefits. 38 U.S.C.A. §§ 101, 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and 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), 3.159, 3.326(a) (2012). There are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). This is indeed the situation in this case. The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to veteran status. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004). The VCAA's duty to assist requirements apply to VA's efforts to obtain verification of service, as explained below. This duty was satisfied by the RO's requests for verification of service from the National Personnel Records Center (NPRC) as discussed below. Analysis The appellant contends that he is eligible for VA benefits based on his service in the Philippine recognized guerrilla from January 1944 to January 1946. Eligibility for VA benefits is governed by statutory and regulatory provisions that define an individual's legal status as a veteran of active military, naval, or air service. 38 U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6. The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). 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 (USAFFE) 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 who 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. The particular benefit claimed in this case originated on February 17, 2009, with the American Recovery and Reinvestment Act. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation, in part, 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). 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, if the evidence meets the following conditions: (1) the copy of an original document was issued by the service department or was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; (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). When a claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department. See 38 C.F.R. § 3.203(c). Certification of service is a prerogative of the service department, and VA has no authority to amend or change their decision. 38 C.F.R. §§ 3.40, 3.41. The United States Court of Appeals for Veterans Claims (Court) has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon VA. See Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In cases where service is not established based upon a document issued by the service department and VA must verify a claimant's service with the service department under 38 C.F.R. § 3.203(c), new evidence submitted by a claimant in support of a request for "verification of service from the service department" must be submitted for service department review. When new identifying information is submitted after the service department last considered whether service was met, another request for verification must be made in order for the duty to assist to be fulfilled. 38 U.S.C.A. § 5103A; Capellan v. Peake, 539 F.3d 1373, 1381 (Fed. Cir. 2008). In this case, the appellant contended in his February 2009 claim (VA Form 21-4138) that he served as part of the Recognized Guerrilla from January 1944 to January 1946. In support of his claim, he submitted an "Affidavit for Philippine Army Personnel" form which reflects that his activities included participation in the USAFFE and that he served in various units with Philippine military forces from January 1944 to January 1946, including the following: "Jd the Pag Regt,"3rd Pag Regt," "XIV Corps," 1st Inf 32 Div," 128th Inf 32 Div," 475 AAA Aw Bn 37 Div," 14th Inf USAFIP NL," and "K Co 4th Bn 3rd Pang Rgt.". He received payment due to Philippine guerilla military services performed in July 1945 and received the Philippine Liberation Ribbon and Medal. This document was authenticated by an assistant adjutant general. The appellant also submitted a senior citizen card from the Federation of Senior Citizens Associations of the Philippines, a postal identity card, and a document indicating that he had an account at the Philippine Veterans Bank. In May 2009, the RO submitted the appellant's information to the service department (NPRC) and noted that his name was not listed in the Reconstructed Recognized Guerrilla Roster. In October 2009, the service department 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. In January 2010, the RO re-submitted the appellant's information to the service department, enclosed a copy of the "Affidavit for Philippine Army Personnel" form which had been submitted by the appellant, and asked whether a change in the service department's prior response was warranted in light of this document. The RO noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster. The service department again certified in February 2010 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. VA is bound by the service department's certification that the appellant had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. Moreover, none of the submitted documentation and lay evidence qualifies as acceptable proof of service, by itself. Such evidence was not issued by the service department and does not contain the necessary information as to the character of the appellant's service so as to establish entitlement to the benefit sought. See 38 C.F.R. § 3.203(a). Therefore, the documentation submitted by the appellant may not be accepted as sufficient verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. In sum, the appellant does not have the requisite service so as to warrant entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of these benefits. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). In Harvey, the Court pointed out that it is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. Id. at 424, citing OPM v. Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 2474 (1990). Where, as here, the law and not the evidence is dispositive, the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs