Citation Nr: 1318248 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-24 523 ) 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. WITNESSES AT HEARING ON APPEAL The Appellant and an interpreter ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), 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. In January 2013, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 verified that the appellant did not have 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 criteria for entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. §§ 101, 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. §§ 3.1, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Board has considered whether the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002), is applicable to this claim. Because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). Accordingly, there is no prejudice toward the appellant in proceeding with the adjudication of his claim and no further need to discuss VCAA duties. Analysis The appellant seeks entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. This issue involves the critical legal criteria of requiring evidence establishing that the appellant is a "veteran" for VA purposes. This determination rests on the nature of his military service. The appellant contends that he served with a unit that should be recognized as establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). 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." 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. 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. Id. 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 has claimed various periods of service, he has claimed service between July 1941 and July 1947, service in 1945 and service between July 1941 and July 1944. The appellant also testified at his January 2013 Board hearing that he served between 1942 and 1945. Relying on a January 2010 NPRC report 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 May 2010, the RO denied the appellant's claim for benefits based on the Filipino Veterans Equity Compensation Fund. In July 2011, considering the appellant's claimed service between July 1941 and July 1947 (which, significantly, encompasses all of the periods of service claimed by the appellant), the NPRC again 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. The appellant has submitted copies of documents related to his claimed service, including an Oath of Office, a Pledge of Service in the Walter Cushing Organization attached to the 121st Infantry Regiment of the United States Army, and a Certificate of Service noting that the Veteran served in the Walter Cushing Guerillas between October 1942 and November 1945. Further, the appellant has provided multiple statements and testimony in which he asserts that he served in guerilla forces attached to the United States Army. A medical certificate was also received along with a waiver of initial RO review. This evidence does not establish qualifying service for the purpose of legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. The NPRC has certified that the appellant had no qualifying service with 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 appellant, if he 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 entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. As 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, he is not a veteran for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs