Citation Nr: 1317101 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 11-11 740A ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 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 service requirements for eligibility for a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(a) (West 2002); 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 VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As the law is dispositive in this claim, the duties to notify and assist do not apply. The appellant seeks compensation from the FVEC Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 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. VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code. For eligible persons who accept a payment from the FVEC Fund, that payment shall constitute a complete release of any claim against the United States by reason of 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 the Act. 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. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). 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: (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). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012); Duro v. Derwinski, 2 Vet. App. 530 (1992). If the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In February 2009, the appellant filed a claim for entitlement to a one-time payment from the FVEC Fund. Therein, the appellant claimed that he was a Filipino World War II veteran, and that he served in the Commonwealth Army, in the 5th Regt. LGBF, from March 25, 1945, to January 14, 1946. In support of that claim, and a prior claim for entitlement to basic eligibility for VA benefits, the appellant has submitted numerous documents, to include a copy of his identification card from the Philippine Veterans Affairs Office; a letter from the Philippine Veterans Affairs Office indicating that the appellant was a Veteran of the Philippine Revolution/World War II who served as a private with PACS BN LGAF; an Affidavit for Philippine Army Personnel; his Application for Old Age Pension (Veteran) with the Philippine Veterans Affairs Office; a certificate of honorable discharge from the Philippine Army; a certification of discharge from the Armed Forces of the Philippines; a copy of a letter from Philippine Veterans Affairs Office informing him that the government would start paying arrears by making a partial payment of pension to all living World War II veterans above a certain age; a copy of what appears to be his daughter's identification for entitlement to educational benefits based on his military service; and a copy of Special Orders dated in January 1946. The RO requested verification of the appellant's service and noted that the subject individual was not listed in the Reconstructed Recognized Guerrilla Roster maintained by RO. In January 2010, the NPRC indicated that the claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. In May 2010, the RO issued a decision denying the appellant's claim because he had not shown basic eligibility. Thereafter, the appellant requested a personal hearing, which was conducted in September 2010. At that hearing, the appellant submitted several documents and reiterated he served honorably as a guerilla during World War II. He also provided three organizations to which he was attached during World War II. The RO then made another request for verification of the appellant's from the NPRC. The RO again noted that the appellant was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO. In January 2011, the NPRC indicated 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 requested another hearing and in July 2011, an informal conference was held, at which time he submitted additional evidence in support of his appeal, but indicated he had no additional testimony and requested that his appeal be sent to the Board as soon as possible. Thereafter, the RO made two additional requests for verification of the appellant's service from the NPRC, and in November 2012 and in January 2013, the NPRC responded that there was no change warranted in the prior negative certification. The Board also notes that in April 2013, a translation was requested of a letter that had been received from the appellant, in September 2003, which he had submitted with regard to his previous claim seeking entitlement to basic eligibility for VA benefits. Although a translation was received back in April 2013, it does not appear that the appellant's entire letter was translated. The final six lines were not translated. However, the words in English show that the Veteran was requesting a personal hearing. The portion of the letter that was translated shows that the appellant requested, in September 2003, what additional records he could submit to support his claim. First, the Board notes that the letter dated in September 2003 did not specifically pertain to the appellant's claim for entitlement to a one-time payment from the FVEC Fund. Further, what is missing in this matter is acceptable proof from the appropriate United States service department showing that the appellant had qualifying military service. Finally, the appellant has reported for two informal hearing conferences regarding this claim, and at the latest hearing, the appellant indicated that he had no additional testimony, and requested that his appeal be sent to the Board as soon as possible. The Board concludes that no additional translation is necessary in this matter as that document is not shown to be pertinent to this appeal. After reviewing this claim and the record, the Board concludes that entitlement to a one-time payment from the FVEC Fund is not warranted because the appellant does not have qualifying military service as a matter of law. The RO received several negative responses from the service department (NPRC) in connection with the appellant's 2009 claim of entitlement to payment from the FVEC fund. Moreover, the appellant has not submitted a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge from a United States service department. 38 C.F.R. § 3.203(a)(1) (2012). All of the documents submitted by the appellant 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. Therefore, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund. 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 the disagreement with the service department. Sarmiento v. Brown, 7 Vet. App. 80 (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, which 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 Board concludes 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. Therefore, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ HARVEY ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs