Citation Nr: 1316716 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-06 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines. 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 appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. CONCLUSION OF LAW The requirements for legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. §§ 3.1, 3.9, 3.40, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In reaching this determination, the Board has reviewed all the evidence in the appellant's claims file, which includes his multiple contentions, as well as various administrative records, and reports of the National Personnel Records Center (NPRC). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the appellant's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant in this case argues that he has the requisite service to qualify for VA benefits, namely, a one-time payment from the Filipino Veterans Equity Compensation Fund. 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 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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in this 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 (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) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. § 101 except to the extent otherwise provided in the statute. For the purpose of establishing entitlement to VA benefits, 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 under 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). The United States Court of Appeals for Veterans Claims (Court) has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant maintains that he had recognized guerilla service from 1942 through April 1, 1945 as part of Flor's Bicol Brigade. In support of his claim, the appellant submitted four affidavits from A.G., B.B., D.B., and P.B., attesting to his service in Flor's Bicol Brigade from the early part of 1942 to April 1, 1945. Along with his September 2009 notice of disagreement, he also submitted a copy of a document entitled "Flor's Bigol Brigade," from the 1st Platoon "A" Co., 1st Bn., 1st Regt., where his name was listed as part of the First Squad. Along with his February 2010 substantive appeal, the appellant, in addition to submitting numerous duplicate affidavits, also submitted a document entitled "Republic of the Philippines, Department of National Defense," dated in February 2010, indicating that he was entitled to an old age pension for service from March 1942 to April 1945, with the "Category of Veteran" being a "Deserving Guerilla." He also supplied a January 2010 letter from the Philippine Veterans Bank identifying him as a PVAO pensioner. In this case, information obtained from the NPRC in May 2009 and December 2012 shows that the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. He 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 appellant submitted an Affidavit from the Republic of the Philippines Department of National Defense Philippine Veterans Affairs Office showing he is considered a veteran by the government of the Republic of the Philippines. He also submitted his own statements and statements from others indicating that he was part of Flor's Bicol Brigade from early 1942 to April 1, 1945. The Board finds that these documents fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department, but rather documents from the Philippine government, his own statements, and statements from others, which are not supported by official findings. As such, those documents 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 Filipino Veterans Equity Compensation Fund. 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. As noted above, 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 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 agency is bound to follow the certifications by the service departments with jurisdiction over United States military records. Based upon the record in this case, the appellant had no service as a member of the Philippine Commonwealth Army, including as a recognized guerrilla, in the service of the United States Armed Forces. He may not, therefore, be considered a Veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. 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 appellant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the appellant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the appellant about the information and evidence that VA will seek to provide; and (3) inform the appellant about the information and evidence he is expected to provide. However, in the case at hand, the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The 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). Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund eligibility for nonservice-connected pension benefits is precluded based upon the Veteran's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Under the circumstances, there is no possibility that the appellant's claim for benefits might be substantiated. Accordingly, further consideration of the provisions of the VCAA is not necessary in this case. ORDER Entitlement to a 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