Citation Nr: 1317217	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  10-10 485	)	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.


WITNESSES AT HEARING ON APPEAL

Veteran and friend, M.T.


ATTORNEY FOR THE BOARD

S. M. Kreitlow



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

The appellant and his friend, M.T., appeared and testified at a Board video conference hearing held before the undersigned Veterans Law Judge in February 2012.  A copy of the transcript of this hearing has been associated with the claims file.  A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010).

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 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 United States Armed Forces.


CONCLUSION OF LAW

As the criteria for basic eligibility for a one-time payment from the FVEC Fund are not met, the claim is without legal merit.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012).

In connection with the claim on appeal, the appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant.  As will be explained below, the claim lacks legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).

II.  Analysis

Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine veterans to be paid from the FVEC Fund to eligible persons.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (Feb. 17, 2009).

For eligible persons who accept a payment from the FVEC Fund, the 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 the Act.  Id. § 1002(h).

VA may make a payment from the compensation fund to an eligible person who, during the one-year period beginning on the date of the enactment of the Act, submitted to VA a claim for benefits under the Act.  The application for the claim shall contain the information and evidence VA requires.  Id. § 1002(c).

An eligible person is any person who 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 a 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538 ); and was discharged or released from such service under conditions other than dishonorable.  Id. § 1002(d).

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); see also Duro v. Derwinski, 2 Vet. App. 530 (1992).  Thus, 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.  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; Soria, supra.

In a timely-filed claim, received in February 2009, the appellant provided identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of recognized guerilla service.  In associated statements, he reported that he had had service with "Combat Co. 3rd BN, 66th INF, USAFIP NL" from March 1945 to November 1945.

In connection with his claim, and throughout the course of his appeal, the appellant submitted a number of documents in support of his claim, to include a document with a heading entitled, "Enlistment Record" that identified him as a private with 
"Combat Co. HQ Bn;" a copy of a discharge certificate showing an ASN and a rank of private with Combat Co. signed by appellant on November 14, 1945; copies of various identification cards, one of which is from the Philippine Veterans Affairs Office that lists him as a World War II veteran; and a joint affidavit from two individuals who aver that they know the appellant and they know that, in his OTAG/NRD records, his middle initial and date of birth were recorded incorrectly (i.e., that his middle initial is "S" rather than "E" and his date of birth is March 25, 1925 rather than March 8, 1924).

In March 2009, the RO requested verification of service by the applicable United States service department using the spelling of the appellant's full name (to include a middle name beginning with the letter "S"), his reported service number, his place and correct date of birth, reported dates of service, his reported rank and the unit designation provided in his supporting documents.  The RO also indicated the appellant is listed in page [redacted] file [redacted] of the Reconstructed Recognized Guerrilla Roster (RRGR) maintained at the RO.  In June 2009, however, the NPRC responded 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.

In October 2009, the appellant disagreed with the RO's August 2009 decision denying his claim and submitted a statement with additional documentation.  He also appeared and testified at a video hearing before the Board in February 2012 as to his induction into the Philippine Army and his activities with the guerrillas.

In March 2012, the Board remanded the appellant's claim finding that additional efforts to verify the appellant's service was required pursuant to Capellan v. Peake, 539 F.3d 1373, 1382 (Fed. Cir. 2008).   

In September 2012, the RO requested additional verification by the applicable United States service department providing all possible spellings of the appellant's name as identified by him, all possible birth dates, and all possible units of assignments as well as all previously provided information.  A follow up request was made in December 2012.  In January 2013, the NPRC again responded 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, the appellant has submitted statements and documentation pertaining to his reported service in the recognized guerillas in an effort to support his claim.  However, none of that documentation or lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  On the contrary, that evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  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 FVEC Fund.

The NPRC has duly considered the appellant's application for VA benefits, along with all the material he has submitted, and has certified the he 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 Board is bound by that certification.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA).  See also Duro v. Derwinski, supra.; Dacoron v. Brown, 4 Vet. App. 115, 120 (1993) (service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces).

The Board is sympathetic to the appellant's situation, and does not question the sincerity of his belief that he is entitled to the benefit he seeks.  However, the pertinent legal authority governing entitlement to payments from the FVEC Fund is clear and specific:  It must be shown by verification of the United States service department that the claimant has qualifying service.  The Board is bound by the law as written.  As, on these facts, the appellant's service has not been verified by the service department, there is no legal theory that would permit a one-time payment from the FVEC Fund.  Consequently, the appellant's claim must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to a one-time payment from the FVEC Fund is denied.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs