Citation Nr: 1318085 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 11-24 007 ) 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 (FVEC). ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION 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). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that the appellant has no legal entitlement to a one-time payment from the FVEC Fund. FINDINGS OF FACT 1. The appellant's application was timely under the applicable statute. 2. The evidence of record shows the documents appellant submitted in support of his application were determined to be inauthentic. 3. The National Personnel Records Center (NPRC) 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. 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. § 501(a) (West 2002); 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 Board considered whether the notice provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2002) are applicable to this claim. The Board finds that, because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59,989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board, nonetheless, notes a January 2013 RO letter that informed the appellant of all of the requirements for the benefits he seeks. Thus, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. Applicable Legal Requirements Under the American Recovery and Reinvestment Act (ARRA), 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 FVEC 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 (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 cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. See 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Thus, if the United States service department refuses to verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, 118 F. 3d at 749. In short, under 38 C.F.R. § 3.203, a claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service. Soria, 118 F. 3d at 749. For purposes 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 the VA, the document is genuine and the information contained in it is accurate. 38 C.F.R. § 3.203(a). When the claimant does not submit evidence of service or the evidence does not meet the requirements of this section, the VA shall request verification of service from a service department. 38 C.F.R. § 3.203(c). Analysis VA received the appellant's application in December 2000. He submitted the following in support of his application: an Affidavit of Service purportedly signed in December 1945 that reflects the appellant served from December 1941 to June 1946, and was assigned to HQ Detachment Company, 11th Division PATC (F-23). The document also notes the appellant was a POW from March to May 1943; and, a Certification of Service purportedly issued by the Republic of The Philippines (RPI) Ministry of Defense dated in May 1985. Documentation in the claims file reflects the appellant's identifying data were submitted to the U.S. Department of the Army Personnel Center (DARP) in 1987. The December 1987 DARP Form 632 notes that no evidence of discharge or recognized guerrilla service was found in the records of that agency. The appellant was not listed among historical data or guerrilla rosters. The Army Personnel Center also determined the affidavits submitted by the appellant were unacceptable, as the affiants were not listed in any of the rosters of eligible signatories. In September 2009, the RO submitted a completed VA Form 21-3101 and the DARP Form 632 to the NPRC to determine the appellant's eligibility. In March 2010, the NPRC indicated via stamp 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. An April 2010 RO letter informed the Veteran of the determination. Along with his notice of disagreement (NOD), the appellant submitted a copy of what is purported to be a certificate of commissioning as a second lieutenant of infantry, dated in March 1944, and an oath of office of the same date. The appellant asserted in his NOD that he was a reserve sergeant with the 219093 Infantry, 11th Div., Philippine Commonwealth Army, when World War II (WW-II) started. He was ordered to active duty and reported to a training camp at Loaog, Llocos Norte, where he was formally inducted. Upon receipt of news the Japanese Army advancing towards the camp, the appellant's unit was ordered to disband and disperse with their arms, as the Japanese Army was too large to confront. The appellant states he laid low for a while, and then he was invited to join a guerrilla unit headed by a Lt. VR. The appellant asserts that his band did not heed the call to surrender after the fall of Bataan but continued its guerrilla activities. Early one morning in March 1943, the appellant's band was surprised by the Japanese Army. Lt. VR was in town visiting his family at the time. Per the appellant, many were killed or injured. The appellant escaped unhurt, but he surrendered the next day, and was interred in a concentration camp. He implies that he feared for his life, but then he notes that, on a night in May 1943, he simply walked out of the camp and took a bus to Manila early the next morning. Once in Manila, he was recruited by a Captain (Cpt) JA. This Cpt JA commissioned the appellant a 2Lt. He remained attached to Cpt JA's guerrilla unit until liberation. In September 1945 the appellant contends that he was processed and returned to military control and returned to inactive status in June 1946. The Appellant asserts the PCA was under the control of the USAFFE when he was inducted in 1941. Therefore, he asserts, he was a member of the USAFFE and a veteran of WW-II. The appellant asserts he received employment preferences and education benefits due to his status as a veteran. The appellant also asserts he obtain U.S. citizenship after a one-year waiting period on the basis of the documents he submitted with his application. Otherwise, the appellant asserts, the waiting period is five years after arrival in the U.S. for non-veterans. In January 2013, the RO again requested the NPRC to verify the appellant's claimed service in light of the additional information he submitted. The February 2013 NPRC response notes no change in the prior negative certification was warranted. The Board is constrained to find that entitlement to payment from the FVEC Fund is not warranted because, as a matter of law, the appellant does not have qualifying military service. As discussed above, on two separate occasions, the NPRC has specifically certified that the appellant had no service as a member of the PCA or recognized guerrillas in the service of the U.S. Armed Forces. The evidence purportedly from the Armed Forces of the Philippines (noted above), and affidavit, submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are official documents of the appropriate U.S. service department. Similarly, determinations related to the appellant's naturalization as a U.S. citizen have no bearing on the issue at hand, as it is only the service department's decision on such matters that is conclusive and binding on VA. In this case, the applicable department is the U.S. Army. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving payment from the FVEC Fund as administered under the law for VA benefits. See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In such circumstances, the applicant's only recourse lies within the relevant service department, not with VA. Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Hence, because the appellant's service does not meet the criteria described, he does not meet the basic eligibility requirements for a one-time payment from the FVEC Fund, and the claim must be denied based upon a lack of entitlement under the law. ORDER The appellant is not eligible for a one-time payment from the FVEC Fund. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs