Citation Nr: 1317607 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 12-02 648A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) from a January 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which found that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. The Veteran was scheduled for a Travel Board hearing in January 2013, but did not appear for the hearing. Therefore, in light of the foregoing, and as the Veteran did not request a rescheduling of the January 2013 hearing or show good cause for his failure to appear, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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 service department 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 U.S. Armed Forces during World War II. CONCLUSION OF LAW The appellant does not have recognized active military service for the purpose of obtaining the one-time payment from the Filipino Veterans Equity Compensation Fund. 38 U.S.C.A. § 501(a) (West 2002 & Supp. 2012); 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 The appellant is seeking a one-time payment from the Filipino Veterans Equity Compensation Fund based upon his claimed service in the Recognized Guerillas under the "B" Co 2nd Prov Inf Regt/ Luzon Guerrilla Army Forces, from February 1943 to May 1945/May 1946. He also claims that he had service with the "A" Co 1st Bn GST Meyacauayan Bulacan; the "B" Co 3rd Bn; the 1st Regt 1st Brigade/FAIT; Bravo 3rd 1st Brigade; 172nd Inf 43rd Div Ipo Dam; 151st Inf 38th Div Montalban; 342nd Inf 86th Div Balara Rizal; "C" Co 1st Bn GST, San Antonia NE; "H" Co 2nd Bn Balara Quezon City; G Co General Service Troops; 151st Inf 38th Div at Montalban Rizzal; and the "E" Co 2nd Bn, 14th Inf. Under the recently enacted American Recovery and Reinvestment Act, a new one-time benefit is 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. For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." Nothing in this act, however, "prohibit[s] 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 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Section 1002 (c)(1) provides that the Secretary 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 this Act, submits to the Secretary a claim for benefits under this section. The application for the claim shall contain such information and evidence as the Secretary may require. Section 1002 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 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. In October 2009, the National Personnel Records Center (NPRC) reported 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 September 2010, December 2010, November 2011, and June 2012, after additional information was forwarded to the NPRC for review, the service department responded that no change was warranted in the prior negative certification. The appellant did not submit 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). In addition, in regard to the Certificate from the Commonwealth of the Philippines, dated in May 1946, the Certificate from the General Headquarters, Armed Forces of the Philippines, dated in July 1956, the copy of a letter from the Republic of the Philippines Office of the President, Philippines Veterans Administration, dated in January 1966, the copy of a letter from the Republic of the Philippines, Ministry of National Defense, dated in November 1986, the copy of a Certification from the General Headquarters, Armed Forces of the Philippines, dated in January 1995, the copy of a letter from the Republic of the Philippines, Ministry of National Defense, Philippine Veterans Affairs Office, dated in September 1996, the copy of a letter from the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, dated in September 1996, the copy of a Certification from the General Headquarters, Armed Forces of the Philippines, dated in February 2009, and the copy of a letter from the Philippine Veterans Affairs Office, dated in May 2010, the aforementioned 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, but rather documents from the Philippine government. As such, these documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits including the one- time payment from the Filipino Veterans Equity Compensation Fund. The appellant also has submitted a copy of a Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release From Active Duty Or Retirement, with two attachments, undated, and a Certificate of Membership from the Headquarters, 4th Division, II Corps, Straughn's Fil-American Irregular Troops (Recognized), dated in April 1988. Such evidence, however, does not establish qualifying service for purposes of legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. The NPRC has certified on five occasions 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. This verification is binding on VA such that VA has no authority to change or amend the finding. Duro v. Derwinski, 2 Vet App. 530, 532 (1992). The proper course for the applicant is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). The Board recognizes that the appellant has also submitted an affidavit which purports to show his service under U.S. command during the Second World War, dated in May 1946. This document is not acceptable proof of the requisite service, however, because it is not an official document of the appropriate United States service department. VA is prohibited from finding on any basis other than a service department document which VA believes to be authentic and accurate or service department verification that a particular individual served in the United States Armed Forces. Furthermore, any such service department finding is binding on VA for purposes of establishing service in the United States Armed Forces. Duro, 2 Vet. App. at 530, 532. 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 may not, therefore, be considered a veteran for the purpose of establishing entitlement to VA benefits including the one-time payment from the Filipino Veterans Equity Compensation Fund. As the appellant does not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the claimant of any information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA's duties to assist and notify have been considered in this case. However, as it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. See 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. In this case, the law is dispositive, and basic legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund eligibility for nonservice- connected pension benefits is precluded based upon the appellant's lack of qualified service; therefore, legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund must be denied. Sabonis, 6 Vet. App. at 426. ORDER Legal entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs