Citation Nr: 1316110 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-49 535 ) DATE ) ) 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. ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the RO in Manila, the Republic of the Philippines, that determined that the appellant did not have qualifying service to be eligible for the 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 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 appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 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). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In this case, it is the law, and not the facts, that are dispositive of the appeal. Thus, the Board finds that the duties to notify and assist under the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Further, VA has no duty to assist an appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A ; Wensch v. Principi, 15 Vet. App. 362, 368. 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). Section 1002, which addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East During World War II, 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. See Section 1002(c)(1). 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. In February 2010, November 2012 and February 2013, the NPRC reported 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. The appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge issued by the United States Army in accordance with 38 C.F.R. § 3.203(a)(1). The Board acknowledges that the appellant has submitted several documents, to include a Form 23, in support of his claim. He has also submitted a Certification from the Armed Forces of the Philippines, Office of Adjutant General stating that he was affiliated with the USAFFE. These documents are not acceptable proof of the requisite service, however, because they are not official documents of the appropriate United States service department. VA is prohibited from finding on any basis other than a service department document which VA believes to be authentic and accurate or service department verification that a particular individual served in the United States Armed Forces. Furthermore, any such service department finding is binding on VA for purposes of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In this case, the finding of the NPRC 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 is binding on VA. Thus, the Board finds that the appellant has no qualifying service in the United States Armed Forces and he is not a "Veteran" for the purpose of establishing eligibility for the Filipino Veterans Equity Compensation Fund benefit administered by the United States Department of Veterans Affairs, such that the claim to entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. Cacalda v. Brown, 9 Vet. App. 261 (1996) (holding that where law, and not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs