Citation Nr: 1317303	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  11-29 104	)	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

J.M. Seay, Associate Counsel


INTRODUCTION

The appellant alleges military service in the Philippines during World War II.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 administrative decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Manila, Philippines.

Subsequent to the February 2013 supplemental statement of the case (SSOC), the appellant submitted statements in February 2013 and March 2013 regarding his claim.  The appellant did not submit a waiver.  However, his statements are cumulative and redundant of his previous statements associated with the claims file and considered by the RO.  Indeed, the statements already considered by the RO included the appellant's contentions that he was part of the guerillas but was a small child at the time and did not register and that he helped to save a United States Marine.  Therefore, a waiver of review by the agency of original jurisdiction is not required.  38 C.F.R. § 20.1304(c) (2012).  In addition, the appellant also submitted a letter dated on April 15, 2013, waiving Regional Office consideration of additional evidence and records submitted, which included copies of letters that are not pertinent to the issue on appeal.  Following this submission, the appellant also submitted a letter dated April 29, 2013, which reiterated his statements that were already considered by the RO and associated with the claims file at the time of the February 2013 SSOC.  In another correspondence from the appellant dated on April 29, 2013, the appellant enclosed articles - "The Return of the Rogues," "War Stories: Remembering World War II, and "Cajun Marine Escapes POW Camp and Joins Guerillas during World War II."  In this respect, the articles again recounted the story of J.C., the United States Marine that the appellant and his brother helped to save and escape from the Japanese prison in the Philippines during World War II.  However, these articles are cumulative and redundant of the articles already associated with the claims file and considered by the RO regarding the escape of J.C.  Again, the appellant's account with respect to the rescue of J.C. is not in dispute - the issue is whether the appellant had the requisite military service as required by law for eligibility for one-time payment from the FVEC Fund.  Therefore, an additional wavier is not required.  38 C.F.R. § 20.1304(c) (2012).  

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).





FINDINGS OF FACT

1.  There has been no demonstration by a DD Form 214, Certificate of Release or Discharge from Active Duty, or an original Certificate of Discharge by a United States service department, that the appellant had the requisite military service as required by law for eligibility for one-time payment from the FVEC Fund.

2.  The National Personnel Records Center (NPRC) has stated that the appellant had no requisite military service, to include as a member of the Philippine Commonwealth Army or the recognized guerrillas, in the service of the Armed Forces of the United States.


CONCLUSION OF LAW

The service requirements for eligibility to a one-time payment from the FVEC Fund have not been met.  38 U.S.C.A. § 5101(a) (West 2002 & West Supp. 2011); 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 FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The United States Court of Appeals for Veterans Claims (Court) has held that 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, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.  Thus, VA has no duty to notify or assist the appellant in this appeal because no amount of notice or assistance could help him substantiate his claim.

Legal Criteria

Under the American Recovery and Reinvestment Act, a one-time benefit was 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).  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.  The Secretary of 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, 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 this Act.

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.  American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).

Under 38 C.F.R. § 3.203(a), the 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: (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 the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

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 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 his service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

Analysis

In the appellant's April 2009 statement in support of his claim, he reported that he was born in San Juan, Rizal, Philippines.  He stated that his date of service was "April 1944" and directed the RO review the enclosed CD-ROM.  The appellant submitted a newspaper article in which it was noted that the appellant saved a United States (U.S.) Marine during World War II in the Philippines.  The article noted that they were reunited in November 2008.

A VA Form 21-3101, Request for Information, reflects that the appellant's name was not listed in the Reconstructed Recognized Guerrilla Roster maintained by the Manila VA RO.  The NPRC response to the request for information, dated in June 2010, reflects that the appellant "has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces."

In support of his claim, the appellant submitted other materials including his Philippines passport and a DVD disc which included a video recording of his reunion with the U.S. Marine that he saved in the Philippines in 1944.  The DVD disc also included a November 2008 article from the Times-Picayune covering his reunion with J.C., the U.S. Marine, a December 2008 article from the Times-Picayune regarding his reunion with J.C. and J.C.'s death, and a January 2009 Vancouver Times article pertaining to the appellant and how he saved J.C.'s life.  In reviewing the materials, the articles show that the appellant was eleven years old in 1944, when he lived in the Philippines.  The U.S. Marine, J.C., escaped from a nearby prison in April 1944 and asked for help from the appellant and his brother.  J.C. took refuge in their passing horse cart and stayed in the appellant's home for three days until the appellant's older brother, who was reportedly a "clandestine member of the Filipino resistance movement" arranged for a new hiding place. [redacted]r, World War II veteran reunited with man who aided his escape from Japanese prison, THE TIMES-PICAYUNE, November 26, 2008.  J.C. was moved to a new place and then met with a band of guerillas and was moved to another location.  After J.C. was moved, the appellant stated that Japanese soldiers stormed into his home and the appellant's older brother was executed as a result of helping J.C. escape.  In other statements, the appellant claimed that he was technically part of an underground guerilla force, but that he did not register because he was a small child.  In his September 2010 notice of disagreement, he explained that he was not registered but that he helped the Americans by saving the life of J.C. and putting his own life at risk.  The appellant also submitted other articles which described J.C.'s escape from the Japanese prison from a buggy driver who helped him meet up with guerillas.  Ted R. Williams, The Return of the Rogues; Margaret Chavez, Cajun Marine escapes POW camp and joins guerillas during WW II, Continental Marine, March 1986; Elizabeth Mullener, War Stories: Remembering World War II.  

Initially, the Board recognizes the case of Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).  In Capellan, the Federal Circuit held that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of a veteran's active service is required, an appellant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department.  The Federal Circuit held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by an appellant concerning a veteran's active service after the initial service department certification.  See Capellan, 539 F.3d at 1380-81.  The Federal Circuit further held that "the correct interpretation of the governing statues and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for 'verification of service from the service department' pursuant to 38 C.F.R. § 3.203(c)."  Id.

Here, the RO requested verification of the appellant's service and received a determination from the National Personnel Records Center (NPRC) in June 2010.  Since that time, the appellant submitted a DVD disc which included a video reunion with the U.S. Marine that he helped save, November 2008 and December 2008 articles from the Times-Picayune covering his reunion with the U.S. Marine, J.C., the death of J.C., and an article from the Vancouver Times regarding the appellant and his actions to save J.C.  He submitted a copy of his Philippines passport and a letter from the National World War II Museum regarding the oral history interview conducted.  He submitted statements noting that he was technically part of the underground guerillas but did not register because he was a small child [eleven years old].  The appellant also submitted articles regarding J.C.'s escape from the Japanese prison during World War II.  The Board notes that these materials were not submitted for review in connection with verifying the appellant's alleged service.  However, remanding this evidence to attempt to re-verify the appellant's service would serve no useful purpose in this case.  The appellant stated several times in his notice of disagreement, VA Form 9, and February 2013 statement, that he did not register as he was a small child at the time and the service department does not have records of him.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  Therefore, a remand to re-verify alleged service is not required.  

The Board finds that the appellant's claim must be denied as a matter of law.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  38 C.F.R. § 3.203 (2012); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

The claims file does not include a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  None of the appellant's submitted materials and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  Moreover, as noted above, the NPRC found that the appellant did not have the requisite service.  Again, the Board is bound by this certification.  See e.g. Capellan, 539 F.3d at 1376 (noting that "if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA").

In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to him and does not question the sincerity of his belief that he is entitled to payment from the FVEC Fund.  The Board recognizes the appellant's heroic actions and those of his brother to save the life of J.C., a U.S. Marine.  The Board does not in any way question or dispute the appellant's account.  However, the Board does not have authority to grant his claim and is constrained to follow the specific provisions of law.  Accordingly, the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement).



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ORDER

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




____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs