Citation Nr: 1315767	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  10-31 751	)	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 (FVEC) Fund.


ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel


INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision by the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO).

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 

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, by way of the National Personnel Records Center (NPRC), has certified that the Veteran 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, or in the New Philippine Scouts under Public Law 190, 79th Congress. 


CONCLUSION OF LAW

The criteria for legal entitlement to the one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. §§ 101, 501(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1, 3.203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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."  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 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.  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."  Nothing in the 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."

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(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 (New) Philippine Scout under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538), Public Law 190, 79th Congress; and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.

Under 38 C.F.R. § 3.203(a) (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.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy 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; and (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.

When the 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).  Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision.  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 Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In this case, the appellant claims that his service qualifies him for legal entitlement to a one-time payment from the FVEC Fund.  The appellant submitted multiple documents along with his claim.  The appellant submitted a certification of service from the Assistant Adjutant General of the Armed Forces of the Philippines reflecting service with the 93rd Div. Band from July 1, 1944 to June 10, 1945; however, the appellant's name was not carried in the Approved Revised Reconstructed Guerilla Roster of 1948.  The Board finds that this document does not establish qualifying service for the purpose of legal entitlement to the one-time payment from the FVEC Fund.

The NPRC has certified two times, first in November 2009 and again in November 2012, that the Veteran had no qualifying service with the United States Armed Forces.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  The proper course for the Veteran, if he 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); Capellan v. Peake, 539 F. 3d 1373, 1376 (2009) (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA."). 

The Board also finds that there has been no new evidence submitted since the last verification completed by the NPRC.  See Capellan (The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, in accordance with VA's 38 U.S.C. § 5103A duty to assist, where a claimant submits new evidence subsequent to a verification of service, that evidence must be submitted and considered in connection with a new request for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c)).  

Based upon the record, the Board finds the Veteran had no qualifying service as a member of the Philippine Commonwealth Army, no recognized guerrilla service, and no service as a New Philippine Scout under Section 14 of the Armed Forces Voluntary Recruitment Act of 1945.  

The appellant may not, therefore, be considered an eligible person for the purpose of establishing entitlement to the one-time payment from the FVEC Fund.  The law is dispositive in this case and legal entitlement is denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Finally, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. § §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) redefined VA's duty to assist claimants in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

In some cases, however, the VCAA 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); see also 38 C.F.R. § 3.159(b) (3) (ii) (VCAA 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.  As discussed, 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 VCAA is 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). 

As the Veteran had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, he entitled to the one-time payment from the FVEC Fund.

ORDER

Entitlement to one-time payment from the FVEC Fund is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs