Citation Nr: 1317100 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 10-48 287 ) 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. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The appellant asserts that he had qualifying service, including recognized guerilla service, from September 1942 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, The Republic of the Philippines, which denied the appellant's claim for Filipino Veterans Equity Compensation for failure to establish eligibility. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). 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 as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits. 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 provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In this case, the determinative matter at issue involves whether the appellant has qualifying service for a one-time payment from the Filipino Veterans Equity Compensation Fund. When the law, and not the underlying facts or development of the facts, is dispositive in a matter, the VCAA can have no effect on the appeal. See Mason v. Principi, 16 Vet. App. 129, 132 (2002) (where the law as mandated by statue, and not the evidence, is dispositive, the VCAA is not applicable); Smith v. Gober, 14 Vet. App. 227 (2000); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that 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). The Board thusly finds that VCAA notice was not required. The Board notes that the appellant's claims file contains his written contentions and multiple statements from his witnesses attesting to his having had qualifying Filipino guerilla service during World War II. One of these statements, which was written in Tagalog, was duly translated into English by VA and the certified translated statement was associated with the claims file. Furthermore, service documents from the armed forces of The Republic of the Philippines relating to the appellant's service in that nation's military have been submitted by the Veteran for inclusion in the record. Lastly, the claims file reflects that VA has thrice inquired the NPRC to verify whether or not the Veteran had service in the recognized guerillas of the Philippines during World War II and the NPRC's definitive response to each query has been associated with the evidence. Thusly, the Board finds that the evidence pertinent to the appellant's claim has been sufficiently developed and the Board will therefore proceed with the adjudication of this appeal. The appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009). In order to qualify for the benefit, there must be affirmative evidence that the claimant is a "veteran" for the purpose of benefits administered by VA, which requires that the claimant have qualifying military service. In Section 1002(d) of the statute, an eligible person has qualifying service if he 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, including among such military forces organized guerrilla forces; and was discharged or released from service under conditions other than dishonorable. For the purpose of establishing evidence of service, 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 if the evidence meets the following conditions: The evidence is a document issued by the service department; and the document contains needed information as to length, time and character of service; and 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). When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, VA will request verification of service from the service department. 38 C.F.R. § 3.203(c) (2012). The Court has held that the findings of the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530 (1992). In this case, the appellant contends that his service in Filipino guerilla forces engaged in an insurgency campaign against the Imperial Japanese Army and Navy during their occupation of the Philippines in World War II constitutes qualifying service in the recognized guerilla forces for purposes of establishing eligibility to receive a one-time payment from the Filipino Veterans Equity Compensation Fund. In support of his claim, he submits lay witness statements from men who allegedly served alongside him in the Filipino insurgency, attesting to his involvement in the campaign against the Japanese occupation. The appellant also submits copies of government documents from the armed forces of The Republic of the Philippines, reflecting his service in the insurgency. Also included in an affidavit dated in July 1950, purportedly from the appellant's former commanding officer, in which the officer recommended that the claimant's participation in the insurgency campaign against the Japanese Occupation be officially regarded as qualifying service in the recognized guerrillas. However, in reports dated December 2009, September 2010, and October 2012, in response to three inquiries by VA, the NPRC definitively certified each time 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. Based upon the evidence of record, the Board finds the documents of record fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service. The correspondence and evidentiary submissions associated with the claims file that were presented by the appellant in support of his claim do not otherwise include any official documents of the appropriate United States service department and 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 relevant provisions of the law and regulations in regard to determining the appellant's eligibility for Filipino Veterans Equity Compensation Fund benefits under the American Recovery and Reinvestment Act have been adequately considered. For the purpose of ascertaining whether a claimant has the requisite military service the provisions of 38 C.F.R. § 3.203 have been followed. The submitted evidence from the armed forces of The Republic of the Philippines does not constitute evidence issued by a service department of the United States military. The appellant has provided no further evidence that would warrant a request for recertification from the service department. 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). The appellant is not legally entitled to compensation from the Filipino Veterans Equity Compensation Fund under Section 1002 of the American Recovery and Reinvestment Act, Pub. L. No. 111-5. As there is no legal basis to substantiate the claim, it must be denied. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs