Citation Nr: 1315648
Decision Date: 05/13/13	Archive Date: 06/28/13

DOCKET NO. 10-41 842	)        DATE MAY 13 2013

On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUE

Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).

WITNESSES AT HEARING ON APPEAL 

Appellant and son-in-law

ATTORNEY FOR THE BOARD

D. Havelka, Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that the appellant had no legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.

In March 2013, the appellant testified at a hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file.

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).

FINDINGS OF FACT

The National Personnel Records Center (NPRC) 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 Armed Forces of the United States.

CONCLUSION OF LAW

The criteria for the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 107 Note, 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, VA is required to meet met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In some cases, however, the duties of notice and assistance need not be considered 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. 227,231-232 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).

This is such a case. Resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service under the FVEC. The duties of notice and assistance are therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).

A new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." 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. 38 U.S.C.A. § 107 Note (Supp. 2010).

For eligible persons who accept a payment from the FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service	" However, nothing in the act "prohibits] a person from
receiving any benefit (including health care, survivor, or burial benefits) which the 

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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." Id.

The law addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. The pertinent section 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; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. 38 U.S.C.A. § 107 Note (Supp. 2010)

The appellant submitted copies of various certifications of military service. These documents indicate service as a guerilla in the Commonwealth of the Philippines, Philippine Army.

In March 2013, the appellant testified at a hearing before the Board. At that time he asserted that he had new evidence to submit, namely a document from 1945 which verified his service. The appellant's son-in-law read the contents of the document including that it was signed by a Captain A.V. Lucas. Review of the claims file reveals that this document is already of record. It is an after-the-fact certification produced by Philippine Army authorities. It is dated in 1953, not in 1945 as asserted in the hearing testimony. Nevertheless, this document is already of record and was previously considered by the RO.

The documents submitted by the appellant do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not an official document of the appropriate United States service department or NPRC. Accordingly, these documents may not be accepted by the Board as verification of service for the

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purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC.

The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).

The RO submitted the pertinent information to the NPRC for verification. The NPRC certified on four separate occasions in September 2009, June 2010, June 2012, and October 2012, 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 prior to July 1, 1946. The NPRC has certified that the appellant had no qualifying service. This verification is binding on VA such that VA has no authority to change or amend the finding. Dwro v. Derwinski, 2 Vet. App. 530, 532 (1992).

The proper course for any claimant who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Based upon the record in this case, the appellant had no qualifying service in order to meet the basic eligibility criteria for establishing entitlement and a one-time payment from the FVEC is not warranted.

ORDER

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

KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

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