Citation Nr: 1314997 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-11 468 ) 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 M. Hudson, Associate Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 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. CONCLUSION OF LAW The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. §§ 101, 107, 5101(a) (West 2002 & West Supp. 2011); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, VA's duties to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 2-2004 (VA notice not required where evidence could not establish entitlement to the benefit claimed). In the instant claim, the law and not the facts are dispositive. Therefore, further discussion of the duties to notify and assist is not required. II. FVEC Fund 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." See American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 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. 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(c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 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. For eligible persons who accept a payment from the FVEC 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." In February 2009, the appellant submitted a VA Form 21-4138 to apply for a one-time payment from the FVEC Fund. He contended that he had active service with recognized guerillas, and listed his name, his address, his date of birth, his place of birth, the unit in which he served, and his dates of service. He also provided the names of his parents and his current spouse. The RO submitted the above information to the National Personnel Records Center (NRPC) and requested that they furnish any and all records that they might have for the appellant. In February 2010, the NPRC 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. A second request to the NRPC was made along with the appellant's Barangay clearance, his baptismal certificate, his parents' marriage certificate and a letter from the appellant dated March 2011, indicating service with a guerilla group. The request also listed two additional names under which the appellant may have served. In November 2012, the NPRC certified that based on the additional information there was no change warranted in the prior negative service certification. In December 2012, the RO sought re-certification of the appellant's service from the NPRC. However, in February 2013, the NPRC certified that no change was warranted in the prior negative service certification. 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). 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). The appellant has not submitted any documents that meet the first requirement of 38 C.F.R. § 3.203(a). He has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the U.S. Armed Forces. Therefore, VA sought service department verification of whether the appellant served in the U.S. Armed Forces in the Philippines. In February 2010, November 2012 and January 2013, based on information contained in the appellant's claims form and in the documents he subsequently submitted, the service department (via the NPRC) certified it had no record of the appellant serving as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. The appellant has provided no further evidence or information (since the February 2013 certification) that would warrant a request for re-certification of his service/nonservice by the service department and VA must abide by the service department's certification. See Capellan v. Peake, 539 F.3d 1737 (Fed Cir. 2008). Accordingly, the Board finds the appellant did not have the requisite service and is not a veteran so as to establish eligibility for compensation from the FVEC Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs