Citation Nr: 1315148 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 11-23 742A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 during World War II. CONCLUSION OF LAW The appellant did 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 FINDINGS AND CONCLUSION When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004) VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist are not applicable to this claim. Mason v. Principi, 16 Vet. App. 129 (2002). The duties to notify and assist do not affect matters on appeal when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. Therefore, further development would not change the outcome. Sabonis v. Brown, 6 Vet. App. 426 (1994). A one-time benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, that payment shall constitute a complete release of any claim against the United States by reason of service. However, nothing in the act prohibits a person from receiving any benefit (including health care, survivor, or burial benefits) that 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, 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 this Act, submits to VA a claim for benefits. The application for the claim shall contain such information and evidence as VA may require. If an eligible person who has filed a claim for benefits dies before payment is made, the payment shall be made instead to the surviving spouse, if any, of the eligible person. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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 was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). The following certifications by the service departments will be accepted as establishing guerrilla service: (i) recognized guerrilla service; (ii) unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts) or the Commonwealth Army. 38 C.F.R. § 3.40(d)(2) (2012). 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 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) (2012). With respect to documents submitted to establish a creditable period of wartime service, 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 ninety 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 discussed above, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). The appellant has asserted that he is a veteran of World War II/Philippine Revolution and served with the N Company 4th Battalion, Hunters ROTC, from January 1945 through September 1945, with a revised recognition beginning in May 1942. A document from the Philippine Veterans Affairs Office dated in October 1986 indicates that his name was carried in the Approved Revised Reconstructed Guerilla Roster of 1948. A document from the Philippine Veterans Affairs Office dated in February 2010 noted that he was a recognized guerilla and served with Headquarters Miguel Ver Composite Regiment, H-ROTC. He also presented evidence that he currently received monthly benefits from the Philippine Veterans Affairs Office based on his status as a Philippine veteran. Upon receipt of the above documents, the RO contacted the service department and requested verification of the appellant's alleged service. In its request, the RO included the information the appellant had provided in support of his claim. However, a September 2010 response from the National Personnel Records Center (NPRC) indicated that the appellant had not accrued 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, thus, denied her claim. The Board observes that 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, 1376 (Fed. Cir. 2008) (if the United States service department does not verify claimed service, applicant's only recourse lies with the relevant service department, not 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. Therefore, 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 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs