Citation Nr: 1316911 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-40 726 ) 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 J. M. Kirby, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, Republic of the Philippines (RO). The Veteran requested a Board hearing in his September 2010 substantive appeal. One was scheduled for him in February 2013, but he did not report for it. As he has not explained his absence at or requested to reschedule the hearing, the Board finds that his hearing request is withdrawn, and that appellate adjudication may proceed. The 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 In July 2009, January 2011, May 2011, December 2011, and April 2012, the National Personnel Records Center (NPRC) 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 criteria for obtaining 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 February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). In Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that, pursuant to both 38 C.F.R. § 3.203(c) and VA's statutory duty to assist as set forth in 38 U.S.C.A. § 5103A, new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. After the initial denial was made in this case, the appellant submitted service documents reflecting his assertion of service in the recognized guerrillas of the Philippine Commonwealth Army. As such, the documents were forwarded to the NPRC to ensure compliance with Capellan. However, the NPRC concluded again in its January 2011, May 2011, December 2011, and April 2012 responses that, even after reviewing the evidence submitted by the appellant, the appellant did not have service as a member of the Philippine Commonwealth Army, to include the recognized guerrillas, in the service of the United States Armed Forces. The appellant was notified of the NPRC's findings in the January 2012 and May 2012 Supplemental Statements of the Case. The appellant submitted no additional documentary evidence after the May 2012 Supplemental Statement of the Case was issued; thus, there is no duty under Capellan to obtain an additional certification of service. Id. Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the 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. VAOPGCPREC 5-2004. As there is no legal entitlement to the benefits claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim. Thus, any deficiencies of notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (holding that compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 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). 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 the Act prohibits 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 that 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 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. The appellant contended in his original claim for benefits that he had honorable service in the recognized guerrillas of the Philippine Army from November 1941 to March 1942. However, the appellant's pertinent information, including name, date of birth, place of birth, cited dates of service, and branch of service, was submitted to the NPRC, who as noted above certified in July 2009 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. When the appellant subsequently submitted additional documentation, additional requests for verification were sent to the NPRC. Again as noted above, the NPRC similarly certified in January 2011, May 2011, December 2011, and April 2012 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 Department of Defense Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD214), or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1) . The appellant's Philippine Army service documents and the many sworn lay affidavits submitted in support of his claim do not 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 and/or lay persons. As such, those documents are unacceptable 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. In sum, the NPRC has certified that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of 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 any claimant, 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. The record does not reflect that the appellant had qualifying service. On that basis, he does not meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs