Citation Nr: 1318090	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  12-11 802	)	DATE
	)
	)

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


THE ISSUE

Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from a April 2010 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). 

In a March 2012 substantive appeal, via a VA Form 9, the appellant requested a video conference hearing before the Board.  The hearing was scheduled for May 2013, but the appellant did not appear and has not provided any explanation for his absence.  Accordingly, his request for a hearing is considered withdrawn, and the Board may proceed with review of the claim.  38 C.F.R. § 20.704(d) (2012).    

The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained.

2.  In March 2010 and December 2011, 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 Armed Forces of the United States.


CONCLUSION OF LAW

The criteria for obtaining the one-time payment from the Filipino Veterans Equity Compensation 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

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  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); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the 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 v. Brown, 6 Vet. App. 426 (1994).  

Analysis

Under the American Recovery and Reinvestment 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 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II.  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.

The appellant submitted a December 1992 certification from the Armed Forces of the Philippines; November 1945 Affidavit for Philippine Army Personnel; certification of service in the Philippine Army from December 1941 to November 1949; January 2012 internal memorandum from the RO noting review and return of the appellant's March 1996 Certificate of Naturalization; undated Certificate of Appreciation from the U. S. Army Freedom Team Salute; and copies of two newspaper articles pertaining to the Filipino Veterans Naturalization Bill.  The Board finds these documents do not 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 or NPRC.  Accordingly, 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 Board also notes 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). 

The RO submitted the pertinent and correct information to the NPRC for verification.  The NPRC certified on two separate occasions, March 2010 and December 2011, 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 of no qualifying service 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 any claimant, 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).

The appellant has also referenced his status as a naturalized citizen of the United States as a reason his claim should be granted.  While it may be that the Immigration and Naturalization Service (INS) has recognized his service as qualifying for their purposes, the laws and regulations pertinent to VA and INS claims are different.  While documents certified by the Philippine government may be sufficient to qualify one for naturalization in the United States, they are not sufficient to establish the appellant's entitlement to the one-time payment at issue in this case.  Determinations made by INS have no bearing on the issue at hand, as the service department's decision is conclusive and binding on the VA.  This evidence is therefore insufficient to verify the appellant's service for the purpose of receiving FVEC as administered under the law for VA benefits.  See Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Because the facts in this case do not satisfy the threshold requirement of qualifying service as defined by section § 1002 of the American Recovery and Reinvestment Act, the appellant's citizenship status has no bearing on his claim. 

Based upon the record in this case, the appellant had no qualifying service in order to meet the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund and the appeal is denied.


ORDER

Entitlement to the 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