Citation Nr: 1315327 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 12-05 590 ) 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 L.B. Cryan, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 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 The appellant contends that he had recognized guerrilla service in the Philippine Commonwealth Army, from 1943 to October 31, 1945. Therefore, 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 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 (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 provides 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 service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). The Act further directs VA to administer the provisions 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, § 1002, 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 in the Philippine Army, VA cannot consider his claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). In January 2010, the RO received the appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. Included with his claim are several documents purporting to show that he has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. These documents include a copy of Certificate of Discharge from the Commonwealth of the Philippines, Philippine Army, dated October 31, 1945; a copy of the appellant's identification card for the Republic of the Philippines Office of Senior Citizens Affairs; and, a copy of a photograph of an armed soldier posing in front of a sign reading "BuenaVista Regiment." In May 2010, the RO sent a request for certification/verification of valid military service in the Armed Forces of the United States. In an August 2010 (received in September 2010) response, the National Personnel Records Center (NPRC) indicated that it was unable to verify valid military service, based on the information/evidence submitted by the appellant. The August 2010 response specifically indicates that the NPRC was unable to verify service as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. Notice of the NPRC's finding was provided to the appellant in September 2010. The appellant's Notice of Disagreement (NOD) was received at the RO in October 2010. The appellant reported that he was a pensioner granted by the Philippine Government for World War Veterans and lately an additional benefit for old age. The appellant also added that he has enjoyed the educational benefit granted for Veterans and obtained a Bachelor of Law degree; and, at present he was a retired Regional Trial Court Judge with commemorate GSIS pension. The appellant stated that he was with the military operation in Northern Luzon attached to the 32nd Division US Army until the surrender of Yamasita sometime in October 1945. Attached to this statement, are additional documents purporting to show that the appellant has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. These documents include a duplicate copy of the previously received Certificate of Relief/Discharge from the Commonwealth of the Philippines, Philippine Army dated October 31, 1945; a Certification from the Armed Forces of the Philippines dated July 16, 1973 as Sergeant in the approved reconstructed recognized Guerrilla Roster of the Signal Platoon, 1st Battalion, Buena Vista Regiment, BMA; and, a March 2010 letter from the Philippine Veterans Affairs office notifying the appellant about the receipt of an old-age pension. The appellant continued to maintain that his service as a member of the Philippine Army entitles him to a one-time payment from the Filipino Veterans Equity Compensation Fund. In the second request to the service department, in April 2011, the RO included the additional information that the appellant provided in support of his claim, as well as his date of birth, spelling of his name, and alleged dates of service. The RO also sent the appellant a duty-to-assist letter in April 2011 notifying him of the law and regulation pertaining to his claim; and, the type of evidence necessary to substantiate his claim. In correspondence received at the RO in May 2011, the appellant responded that he had no other information or evidence to give VA to support his claim. In September 2011, the RO sent another duty-to-assist letter to the appellant requesting that he submit a certified copy of his Affidavit for Philippine Army Personnel (Form 23 Processing Affidavit) in order to help the service department expedite its search for the records necessary to verify service. In response to this request, the appellant submitted duplicative evidence previously received, and he did not submit the requested documentation. In December 2011, the RO submitted another request for verification of the requisite military service from the NPRC based on the evidence received with the appellant's NOD as summarized above. A January 2012 response from the National Personnel Records Center (NPRC) 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, thus, denied his claim. The RO issued a Statement of the Case (SOC) in February 2012 and the appellant perfected his appeal to the Board in March 2012. In March 2012, the RO received a February 2012 response from the NPRC to the December 2011 request for NPRC verification of the requisite military service. The RO did not issue a supplemental statement of the case before the matter was certified to the Board on appeal. Generally, a supplemental statement of the case (SSOC) is prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. 38 C.F.R. § 19.31. The February 2012 NPRC response, which is the only evidence added to the record after the appellant perfected his appeal to the Board, is duplicative of NPRC's prior response dated in January 2012; thus, there is no need for the RO to issue a supplemental statement of the case (SSOC) addressing this duplicative evidence. None of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, the evidence submitted was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Moreover, none of the aforementioned documents is a United States service department document establishing qualifying service. 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 Filipino Veterans Equity Compensation Fund. The NPRC has duly considered the appellant's application for VA benefits and has repeatedly 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 those certifications. 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). For the foregoing reasons, the appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, his claim for benefits must be denied. The Board is sympathetic to the appellant, and does not question the sincerity of his belief that his service qualifies as recognized guerrilla service with the American Forces during World War II. However, a determination as to the requisite qualifying service must be resolved with the service department and not VA. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of this law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). Finally, the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive. 38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs