Citation Nr: 1316737 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-02 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a 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 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 United States Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have the requisite service to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that she had recognized guerrilla service in the Philippine Commonwealth Army, from April 1942 to December 1945. Therefore, she asserts that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund. The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits. 38 U.S.C.A. § 107 (West 2002). The particular benefit claimed originated on February 17, 2009 with the American Recovery and Reinvestment Act, to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization. Pub. L. No. 111-5, 123 Stat. 115 (2009). That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). An eligible person is defined as any person who served 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 dated July 26, 1941. That includes any person who served in military units such as the 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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538). Additionally, the person must have been discharged or released from service under conditions other than dishonorable. Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009). The Act further directs VA to administer the provisions in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided. Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009). Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002). Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes. The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, 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, (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). With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. 38 C.F.R. § 3.203(b) (2012). When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements, VA shall request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997). Moreover, where the United States service department does not certify the claimant's alleged service in the Philippine Army, VA cannot consider his claim for Veterans' benefits based on that service. Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997). In February 2009, the RO received the appellant's claim for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. In June 2009, the RO sent a request for certification/verification of valid military service in the Armed Forces of the United States based on the information provided by the appellant on her claim form. This included her name, date of birth, dates of service and unit in which she served. The request also noted that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the VARO in Manila. In a September 2009 response (received in October 2009), the National Personnel Records Center (NPRC) indicated that it was unable to verify valid military service, based on the information/evidence submitted by the appellant. The September 2009 response specifically indicates that the NPRC was unable to verify service as a member of the Commonwealth Army of the Philippines, including the recognized guerillas, in the service of the Armed Forces of the United States. Notice of the NPRC's finding was provided to the appellant in January 2010. The appellant's Notice of Disagreement (NOD) was received at the RO in June 2010. Along with her NOD, the appellant submitted additional evidence in support of her claim. These documents purport to show that she has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. The evidence includes numerous documents from the Philippine Veterans Affairs Office (PVAO) showing that the appellant was a WWII veteran with the Philippine Army and receives an Old Age pension. More specifically, there is correspondence from the PVAO confirming that the appellant receives an Old Age pension; photocopies of Identification cards noting the appellant's membership with the Veterans Federation of the Philippines and that for her spouse; checks received from the PVAO; her December 1999 Application for Old Age Pension as a surviving spouse; a photocopy of an identification card noting the appellant's membership with the Camp Isarog Unit in 1942; a December 1983 PVAO application for educational benefits; a November 1985 application for free eyeglasses; and a July 1976 joint affidavit signed by two people purporting to have served with the appellant in 1945. In addition, there is a copy of a November 1992 cover letter from the appellant to the Nebraska service center of the Immigration and Naturalization Service (INS) regarding an application for naturalization. Finally, there is a copy of an Evidence Request from the INS to the appellant, with a handwritten date of July 1997. The appellant asserts that the evidence summarized above contained a copy of her thumbprints taken by the FBI; however, the only thumbprints noted in the above documents are on the appellant's December 1999 Application for Old Age Pension for a surviving spouse, and a document issued by the PVAO. Nevertheless, because the appellant submitted the additional evidence with her NOD, which suggests that she may have served under her maiden name, the RO sent a request for certification/verification of valid military service in the Armed Forces of the United States. In the August 2010 request, the RO listed all of the additional possible names under which the appellant may have served. In an October 2010 response, the NPRC indicated that it was unable to verify valid military service, based on the information/evidence submitted by the appellant. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, issued a Statement of the Case showing the continued denial of her claim. Enclosed with the appellant's VA Form 9, substantive appeal to the Board, are additional documents purporting to show that she has had the requisite service to establish basic eligibility to receive the one-time payment from the Filipino Veterans Equity Compensation Fund. These records, however, are duplicative of records already received and reviewed, with the exception of an April 2010 letter to the appellant from the PVAO regarding payment to Old Age Philippine Veterans of World War II. This document, while new, only serves to show that the appellant continues to receive an Old Age pension from the Philippine government via the PVAO. It does not provide any additional evidence that could possibly change the outcome of this claim because it is redundant of evidence already submitted and sent to the NPRC for review. None of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203. On the contrary, the evidence submitted was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Moreover, none of the aforementioned documents is a United States service department document establishing qualifying service. Therefore, that evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. The NPRC has duly considered the appellant's application for VA benefits and has repeatedly certified that she had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by those certifications. Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA). For the foregoing reasons, the appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund. Therefore, her claim for benefits must be denied. The Board is sympathetic to the appellant, and does not question the sincerity of her belief that her service qualifies as recognized guerrilla service with the American Forces during World War II. However, a determination as to the requisite qualifying service must be resolved with the service department and not VA. The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). This case is decided based on its application of this law to the pertinent facts. Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant). Finally, the provisions of the law regarding notice and assistance with development have no effect on an appeal where, as here, the law, and not the underlying facts or development of the facts, is dispositive. 38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs