Citation Nr: 1316264 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 11-03 138 ) 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 (FVEC Fund). ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION 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). The appellant alleges that she served with the United States Armed Forces in the Far East (USAFFE) during World War II. Specifically, that she served with a United States Army hospital from May 1945 to February 1947. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The Board notes that a substantive appeal (VA Form 9) was received at the RO over 60 days after the issuance of a statement of the case; however, the Board finds that the filing of a timely substantive appeal was waived when the RO certified the appeal to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal). 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 Armed Forces of the United States. CONCLUSION OF LAW The appellant is not eligible for a one-time payment from the FVEC Fund. 38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2011); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the American Recovery and Reinvestment Act, a new 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 Feb. 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. 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(c)(1) 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. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002(c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 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. Section 1002(j)(2) also provides that VA will administer its provisions in a manner consistent with VA law except to the extent otherwise provided in the statute. A September 2009 request from the RO for verification of the appellant's service shows that her name was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the VA RO in Manila. In November 2009, the National Personnel Records Center (NPRC) provided verification by the service department, showing 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 did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from the United States Armed Forces for purposes of establishing entitlement to VA benefits in accordance with 38 C.F.R. § 3.203(a)(1). Instead the appellant submitted: (1) a certification from the Republic of the Philippines, Department of National Defense, certifying her status as a veteran of the Phillippine Revolution/World War II who served with the "ANC"; (2) a certification from the General Headquarters of the Armed Forces of the Philippines, which indicates that she served with the "1st General Hospital" from May 1945 to February 1947; (3) copies of membership cards for the World War II Memorial, the Military Nurses Association of the Philippines, and The American Legion; (4) an identification card from the General Headquarters Armed Forces of the Philippines; (5) an old photograph of her in uniform; (6) her own statements attesting to service with the United States Army from May 1945 to February 1947; and (7) a copy of a Department of National Defense, Philippine Veterans Affairs Office World War II Veteran Pensioner's ID card. While the certification from the Republic of the Philippines, Department of National Defense indicates that the appellant served during the Philippine Revolution/World War II, this document fails to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service in the United States Armed Forces as it is not an official document of the appropriate United States service department. As such, this document may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC Fund. Other evidence listed above does not tend to verify the appellant's claimed service with the USAFFE during World War II. In November 2012, after reviewing the additional evidence submitted by the appellant, the NPRC provided additional verification by the service department, showing that no change was warranted in the prior negative service certification provided in November 2009. The 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 United States Armed Forces. She asserts that the American Recovery and Reinvestment Act does not limit sources for verifying military records, and the law does not require that a person be on a "list" held by the NPRC at St. Louis, Missouri, before qualifying for eligible benefits. The Board finds, however, that verification was provided for the appellant by the service department, and verification from the NPRC and the service department 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 appellant, 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). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. It is noted that after the NPRC's most recent recertification was signed in November 2012, the appellant provided no further evidence that would warrant a request for recertification from the service department as a copy of a Philippine Veterans Affairs Office, World War II Veteran Pensioner's ID card and membership cards for The American Legion, submitted in March 2013, do not contain additional pertinent evidence regarding the claimed service. See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373(Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification). As such, the Board finds that further requests for certification or recertification with the service department are not warranted. Based upon the record in this case, 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. She may not, therefore, be considered a veteran for the purpose of establishing entitlement to the one-time payment from the FVEC Fund. Since the law is dispositive in this matter, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, the Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. 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); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Veterans Claims Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The VCAA does not apply to the appellant's claim seeking compensation from the FVEC Fund. As the Board has explained above, the claim must be denied as a matter of law because the undisputed facts, when applied to the controlling law and regulations, render her ineligible for the claimed benefit. The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court has recognized that enactment of the VCAA does not affect matters on appeal from the Board when the questions are limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (1999); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In addition, VA's General Counsel has held that there is no duty to notify a claimant where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See VAOPGCPREC 5-2004. In the instant case, there is no legal entitlement to the benefit claimed (FVEC Fund) because the appellant did not have recognized qualifying active military service. Because there is no reasonable possibility that further notice or assistance would aid in substantiating the claim, any VCAA notice or assistance deficiencies are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). ORDER Legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs