Citation Nr: 1317451 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 11-20 291 ) 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. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The appellant does not have any recognized active service in the Armed Forces of the United States. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 appellant served in the Philippine Military during the Second World War; there is no indication provided by official service department records that the appellant ever had service in a component of the Armed Forces of the United States, to include any service in the Philippine Commonwealth Scouts or Recognized Guerilla Forces. CONCLUSION OF LAW There is no legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, as the appellant has not met the legal definition of a "Veteran" for the purposes of basic entitlement to VA benefits. 38 U.S.C.A § 101(2) (West 2002); 38 C.F.R. § 3.1(d), 3.9, 3.40, 3.203 (2012); Selley v. Brown, 6 Vet. App. 196, 198 (1994) . REASONS AND BASES FOR FINDING AND CONCLUSION A "Veteran" is defined as a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A "Veteran of any war" is defined as any Veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e). Service as a Philippine Scout is included for pension, compensation, dependency and indemnity compensation (DIC) and burial allowances, except for those inducted between October 6, 1945, and June 30, 1947, inclusive, which are included for compensation benefits, but not for pension benefits. Service in the Commonwealth Army of the Philippines from and after the dates and hours when called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941, is included for compensation benefits, but not for pension benefits. Service department-certified recognized guerrilla service, and unrecognized guerrilla service under a recognized commissioned officer (only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army, prior to July 1, 1946) is included for compensation benefits, but not for pension or burial benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40(c) and (d). Active service will be the period certified by the service department. 38 C.F.R. § 3.9 (a) and (d). For the purpose of establishing entitlement to VA benefits, 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 under 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 VA the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). The United States Court of Appeals for Veterans Claims has held that the Secretary has lawfully promulgated regulations making service department findings "binding on the VA for purposes of establishing service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The appellant in this case asserts having the requisite service to qualify for VA benefits, namely, to qualify for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. He has submitted documentation from the Government of the Philippines which shows service with a Philippine Army Military Police Battalion from March 1945 to March 1975. The United States Army Forces Far East (USAFFE) records included in the claims file indicate that the Veteran's unit was, indeed, a part of the Philippine Army. Due to this, and due to other evidence showing service under Philippine command, the appellant is recognized as having had service in the Philippine Military by the government of that nation. The National Personnel Records Center (NPRC) was contacted in connection with this claim. In statements dated in January 2010, April 2010, and May 2011, the NPRC stated that the service department (Army) could not confirm that the appellant had any service under U.S. command in the Philippine Commonwealth Army and/or Recognized Guerilla forces. That is to say, the NPRC returned a finding that the appellant had no service which would qualify as active duty in the U.S. Armed Forces. This was done using the different alleged units of assignment. The NPRC considered the evidence submitted by the Veteran, and did not change its determination that the Veteran had no credible U.S. service. VA is bound by service department determinations regarding what constitutes service in the Armed Forces of the United States. Indeed, while an appellant may submit proof of his or her service in the Armed Forces directly to VA (i.e. it does not need to come from the service department directly), the submitted documentation must be issued by the service department in order to verify active service. See 38 C.F.R. § 3.203. In this case, the appellant has submitted documentation from the Republic of the Philippines which shows he served in the Armed Forces of that nation, and the available records issued by United States authorities also confirm service in the Philippine Army outside of U.S. command. This evidence remains uncontradicted except for the appellant's unsubstantiated contentions to the contrary. Indeed, the appellant has submitted lay statements which purport to show his service under U.S. command during the Second World War, and he has also alleged that the NPRC fire of 1973 could, potentially, have damaged records which would have verified his service under U.S. command. The RO noted that if the appellant had USAFFE service as alleged, that such documentation would not have been submitted to the NPRC in 1973, and thus, would not have been damaged in the fire. As described above, there are several interactions with the NPRC of record, and the Board notes that there is no response from the NPRC indicating that if records were present for the Veteran, that they would have been located in an area that suffered damage in the 1973 fire at that facility. The Board acknowledges that some of the documents submitted by the appellant suggest that he had service in the USAFFE. Unfortunately, there is no official service department documentation of Philippine service which would qualify as service in the U.S. Armed Forces, and the NPRC determinations expressly found that the appellant has no recognized service. As this is the case, the Board fully recognizes the service that the appellant gave the Republic of the Philippines during World War II. The Board cannot, however, recognize the appellant as ever having served in a unit which would be part of the Armed Forces of the United States, and thus cannot extend VA benefits to him. Indeed, as this most basic element of a claim for entitlement to payment from the Filipino Veterans Equity Compensation Fund has not been met, the Board must conclude that there is no legal entitlement to benefits, and the claim is denied. 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) impose obligations on VA in terms of its duty to notify and assist claimants. Inasmuch as the Board has found that the law, and not the evidence, is dispositive in this case, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The service department cannot verify that the appellant was ever a member of the Armed Forces of the United States, to include service in the Philippine Commonwealth Scouts or Recognized Guerilla Forces, and the appellant has not provided any service department verification which would contradict this determination. As such, there is no way in which the appellant could ever be legally entitled to benefits from the Filipino Veterans Equity Compensation Fund. Thus, VCAA notice is not required. ORDER Basic legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs