Citation Nr: 1318252 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-27 789 ) 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 Appellant and V.M. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The appellant alleges that he had recognized service with the U.S. Armed Forces, Far East (USAFFE), in the Philippines during World War II. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant testified in January 2013 before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing at the above VARO; a transcript is of record. The issue of entitlement to non-service-connected pension benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund are not met. 38 U.S.C.A. §§ 101(2), 107(b) (West 2002 & Supp. 2012), American Recovery and Reinvestment Act of 2009 § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.1(d), 3.6, 3.40, 3.41, 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice requirements of VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The VCAA does not affect matters on appeal when the issue is limited to statutory or regulatory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (interpreting that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Nevertheless, the appellant was provided notice in a July 2011 letter, and also submitted documents to support his claim during the course of the appeal. There is no dispute as to the facts involved, and this is a matter where the law and not the facts are controlling. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Pursuant to the holding in Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the RO in the context of the instant appeal has sought and obtained further input from the NPRC which has reiterated that the appellant is without the requisite military service as to render him an eligible person under the American Recovery and Reinvestment Act for a one-time payment from the Filipino Equity Compensation Fund. Thus, there is no possibility that any additional notice or development would aid in the substantiation of his claim. 38 U.S.C.A. §§ 5103, 5103A. The appellant has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim, and the appellant, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefit. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under the American Recovery and Reinvestment Act, enacted February 17, 2009, 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 (Act) § 1002, Pub. L. No. 111-5. Payments for eligible persons are either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Section 1002 of the Act addresses payments to eligible persons who served in the United States Armed Forces in the Far East (USAFFE) during World War II, providing in § 1002(c)(1) 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 (February 17, 2009, through February 16, 2010), 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. An eligible person under Section 1002(d) of the Act 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 RO attempted to verify whether the appellant had participated in qualifying service for the benefit sought. The NPRC reported twice in August 2011 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. The appellant submitted a signed statement from the United States Forces in the Philippine Islands, Seventh Medical Corps, indicating that he was treated at the guerilla station hospital from 1942 to 1946 and that he was a member of the 76th Infantry Regiment, 7th Military District. He also submitted signed statements that he was treated in April 1943 for low blood pressure and in October 1942 for pneumonia. A statement from the United States Forces in the Philippine Islands says that the appellant served and that his name was in the October 1945 roster sent to the United States Army. A certificate from the Philippine Army states that the appellant was discharged in April 1946 from the 53rd Infantry Regiment and that he had been in Company B, 1st Battalion, 76th Infantry Regiment, 7th Military District. The appellant submitted identification cards from the Philippine Veterans Affairs Office and the Veterans Federation of the Philippines. An August 2010 statement from the Office of the Barangay Captain says that the appellant was known to be a person of good moral character, was not known to be a member of a subversive organization, and did not have any cases pending against him. After the November 2011 Supplemental Statement of the Case, documentation was added to the claims file indicating that in July 2011 the information the appellant submitted was used when checking the Reconstructed Recognized Guerilla Roster maintained by the RO, and that he was not listed. The RO previously also found that the appellant is not listed on the Reconstructed Recognized Guerilla Roster, and this had been noted on the request to the NPRC for verification purposes. See VA Letters dated in April 1957 and April 1993, and NPRC verification dated in August 2011. As such, the appellant is not prejudiced by consideration of this duplicative and cumulative evidence in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The documents from the Philippine government fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, because they are not official documents of the appropriate United States service department, but rather are documents generated by the Philippine government. As such, those documents may not be accepted by the RO or 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. As noted, the 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 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 benefits from the United States, administered by VA. The submitted documentation from the United States Forces in the Philippine Islands is also not sufficient for benefits from the United States, administered by VA. This department is bound to follow the certifications by the service departments with jurisdiction over United States military records. 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 an eligible person for the purpose of establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. ORDER Entitlement to a 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