Citation Nr: 1317222 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 12-07 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant has legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant had a confirmed period of Philippine Army duty from December 1941 to May 1946, but no qualifying service with the United States Armed Forces. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 administrative decision by the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which determined that the appellant did not have qualifying service to be eligible for the one-time payment from the FVEC Fund. The appellant appealed this decision to the Board. In December 2011, the appellant testified before a Decision Review Officer at the above-cited RO concerning the issue on appeal. A copy of the hearing transcript has been associated with the claims file. The case was remanded by the Board in August 2012 so that the appellant could be afforded the opportunity for a requested video conference hearing before the Board. The hearing was scheduled, but the appellant failed to report. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 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 United States Armed Forces. CONCLUSION OF LAW The criteria for eligibility to 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. 2009); 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 Duties to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties. 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 (February 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 that 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. For payments to eligible persons who served in the United States Armed Forces in the Far East during World War II, 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 a claim to VA for benefits under the Act. The application for the claim shall contain the information and evidence VA requires. Id. 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 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. Id. 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). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA. Soria 118 F.3d at 747. 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 118 F.3d at 747. In an April 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC Fund as a result of service in the 2nd Samar Company, the Samar Construction Battalion, and the 99th Samar Area Command from December 1941 until May 1946. The RO requested verification from NPRC of service using the information provided by the appellant. The RO also supplied the NPRC with copies of the relevant records submitted by the appellant. In October 2009 and September 2011, 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. Consequently, the RO determined that the appellant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, denied his claim. During the course of his appeal, in December 2011, the appellant and his daughter testified at a hearing before a Decision Review Officer at the RO. In addition to submitted documents attempting to verify service, it was related that the appellant was processed by the 8th U.S. Army in 1945 and that he had served as a guerilla during World War II. Review of the documentation and lay evidence of record shows that none of the submitted documentation and lay evidence qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2012). 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. NPRC has duly considered the appellant's application for VA benefits and certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. The Board is bound by that certification. 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 with the service department, not with VA). The Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. In reaching this conclusion, the Board remains sympathetic to the appellant and does not question the sincerity of his belief that he is entitled to VA benefits, specifically in the form of payment from the FVEC Fund. Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs