Citation Nr: 1317769	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  11-00 374	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The appellant contends that he served as a soldier in the Hukbalahap in the Philippines, in the service of the United States Armed Forces, from 1943 through 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  A timely Notice of Disagreement (NOD) was filed by the appellant in June 2010.  After a Statement of the Case was issued in October 2010, the appellant perfected his appeal in December 2010, via VA Form 9 substantive appeal.

In his NOD, the Veteran appeared to express a desire to have a Board hearing scheduled in this matter.  Nonetheless, in his subsequent substantive appeal, he expressly declined to have a Board hearing scheduled.

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 United States Armed Forces during World War II.


CONCLUSION OF LAW

The criteria for entitlement 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. 2010); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 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) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The question before the Board is whether the appellant had qualifying service to establish eligibility for a one-time payment of benefits from the Filipino Veterans Equity Compensation Fund.  The record includes service department verification of the appellant's service.  Because the process of establishing qualifying service is governed by laws and regulations, and, because the service department's certification is binding, the Board's review is limited to interpreting the pertinent laws and regulations.

Where the interpretation of the law is dispositive of the appeal, as in this case, neither the duty to notify nor the duty to assist provisions of the VCAA are applicable.  De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

II.  Analysis

Under the American Recovery and Reinvestment Act (Act), a 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 ...."  However, nothing in this act "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 (c)(1) of the Act 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.

As noted previously, the essential question involved in this case is whether the appellant has the requisite military service to be eligible for payment from the Filipino Veterans Equity Compensation Fund.

In his September 2009 claim, the appellant asserted that he served in the service of the United States Armed Forces as a recognized guerilla attached to Hukbo ng Bayan Laban sa Hapon, from October 1943 through December 1945.  The appellant also attached a copy of a Philippine Veterans Affairs Office card which was apparently issued to him by the Philippine government.  Consistent with 38 C.F.R. § 3.203(c), which mandates that VA shall request verification of service from the service department, the RO contacted the National Personnel Records Center (NPRC) in St. Louis, Missouri to verify the appellant's claimed service.  In a December 2009 response, NPRC advised that there was no record of the appellant's service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.  Accordingly, the appellant's claim was denied by the RO in May 2010.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (holding that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces); see Venturella v. Gober, 10 Vet. App. 340 (1997).

Subsequently, in his June 2010 NOD, the appellant reasserted that he served from 1942 through 1945 as a member of an underground force of the Philippine Commonwealth Army known as the Hukbalahap.  According to the appellant his reported service had been recognized by the Philippine government.  Although he suggested that he used an alias during service, he did not provide his purported alias.  The appellant also provided copies of various documents issued to him by the government for The Republic of the Philippines.  The submitted documentation included an undated Honorable Discharge Certificate purporting to certify the Veteran's service as a member of an underground anti-Japanese resistance movement known as the Hukbalahap from November 1943 through December 1945; September 1993 application for old age pension benefits; April 1997 Joint Affidavit attesting as to the appellant's service as a member of the Hukbalahap; and a May 2009 certificate purporting to certify the Veteran's status as a veteran who served as a sergeant with Huk, RC No. 11, 2nd Squad, 3rd Boni Squadron.  In September, this additional information was submitted to the NPRC in a renewed attempt to verify the appellant's guerilla service.  In December 2012, the NPRC again notified the RO that there was no record of the Veteran's claimed service.

Under the regulations, for the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial 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 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 VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

In this case, none of the documentation provided by the appellant was issued by the appropriate United States service department but rather, by the Philippine government.   Thus, the documents provided by the appellant do not meet the conditions under 38 C.F.R. § 3.203(a)(1).  Accordingly, they 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.

Notwithstanding the above, in Capellan v. Peake, 539 F.3d 1373   (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that, in the context of a Dependency and Indemnity Compensation claim, where service department certification of 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 in Capellan held further that failure to request service department review of additional or new documents or evidence provided by an appellant concerning purported active service, even after an initial service department certification was already made, constitutes a violation of VA's duty to assist.  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.  

The Board finds that the holding in Capellan is equally applicable to the appellant's claim.  Mindful of the same, the Board notes that all information and evidence received from the appellant have been provided in two separate requests for verification of the appellant's service made to the NPRC in November 2009 and September 2012.  As noted above, negative responses to both requests were received from the NPRC.  Overall, the Board finds that the assistance requirements set forth in Capellan and by applicable regulations have been properly discharged by the RO.

Given the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that the appellant does not meet the basic eligibility requirements for a one-time payment from the Filipino Veterans Equity Compensation Fund.  Thus, the appellant's claim lacks legal entitlement under the applicable provisions.  As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).


ORDER

Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



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



Department of Veterans Affairs