Citation Nr: 1317949 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 11-33 144 ) 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 E. D. Anderson, Counsel INTRODUCTION The record indicates that the appellant had no qualifying service with the United States Armed Forces. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. 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 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 Armed Forces of the United States. 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. 2010); 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 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 ...." Id. 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." Id. 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. 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. Id. The appellant contends that he had military service as a recognized guerilla during WWII and asserts that he is entitled to VA benefits as a result of his military duties. In support of his claim, the appellant submitted copies of service records from the Philippine Army, including a discharge certificate. The Veteran has also submitted records from the Philippine Veterans Affairs Office establishing that the appellant is considered a veteran by the Philippine government for pension purposes based on service as a guerrilla during World War II. Unfortunately, the records 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 alleged documents from the Philippine government. As such, those 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. Basic eligibility for VA benefits may be established only upon verification of valid military service by the service department or by the National Personnel Records Center (NPRC). In an October 2010 response, the NPRC determined that there was no verifiable service under the appellant's name. Moreover, NPRC conducted a subsequent search after receiving new information regarding his unit in March 2011, but the search again revealed that the appellant had no recognized guerrilla service or service as a member of the Philippine Commonwealth Army in the service of the U.S. Armed Forces. As the service department's findings are binding and conclusive upon VA, the Board is bound by this determination. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). The proper course for the appellant, who believes there is a reason to dispute the report of the service department or the content of military records is to pursue such disagreement with the service department. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA. Based upon the record in this case, 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 the one-time payment from the Filipino Veterans Equity Compensation Fund. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, when the law and not the evidence is dispositive of the claim, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (VCAA not applicable to a claim for non-service connected pension when the claimant did not serve on active duty during a period of war). Moreover, the regulations provide that VA will refrain from providing assistance in obtaining evidence when the appellant is ineligible for the benefit sought "because of lack of qualifying service, lack of veteran status, or other lack of legal entitlement." 38 C.F.R. § 3.159(d). As the law (i.e., the appellant's basic eligibility) is dispositive in the instant claim, the VCAA is not applicable. ORDER Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ John Z. Jones Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs