Citation Nr: 1318265	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  11-33 965	)	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 (FVEC) Fund.



ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Counsel



INTRODUCTION

The appellant claims active service during World War II.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that denied the appellant's claim of eligibility for the one-time payment from the FVEC Fund.

In May 2013, the Acting Chairman of the Board, on his own motion, advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.  


FINDING OF FACT

The National Personnel Records Center (NPRC) has certified that the appellant had no requisite military service, to include as a member of the Philippine Commonwealth Army or 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 a one-time payment from the FVEC Fund.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted Feb. 17, 2009); 38 C.F.R. § 3.203 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Pre-adjudicatory notice was not provided in this case.  However, in this case, as explained below, the law, and not the evidence, is dispositive.  Therefore, VA's duties to notify and assist a claimant do not apply in this case.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, it is not necessary to determine whether VA fulfilled the duties in this case; and there is no prejudice to the appellant in the Board proceeding to adjudicate his claim.

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 Feb. 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.

An eligible person is defined as any person who served 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 dated July 26, 1941.  That includes any person who served in military units such as the 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; as well as any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009).

The Act directs VA to administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits' under the laws administered by VA.  38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets 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) (2012).

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

In February 2009, the RO received the appellant's application for the one-time payment from the FVEC Fund.  Review of the application reveals that the appellant asserts that he served with the Commonwealth Army in the General Serrvice Troops (ECLGA) from October 1942 to October 1945.  Following receipt of this claim, in May 2009, the RO submitted the pertinent information provided by the appellant to the National Personnel Records Center (NPRC) for verification.  In September 2009, the 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.  

Thereafter, the appellant submitted several documents in support of his claim.  Those documents include an application for old age pension, an Extract Service Record showing assignment as a civilian musician in Ramsey's Military Band (ECLGA), a Special Order, dated in October 1945, releasing civilian volunteers (including the appellant) to inactive status, and a certification from the Philippine Veterans Affairs Office, dated in July 1976, showing that appellant's name was certified to the Philippine Veterans Bank.  There are also a number of affidavits, including an October 2009 joint affidavit by two military officers averring that the appellant served in the guerrilla movement, as well as photocopies of various identification cards indicating the appellant is a 'veteran.'  Finally, there is a January 1946 Affidavit for Philippine Army Personnel, dated in January 1946, showing that appellant identified himself as a civilian, rather than USAFFE, guerrilla.  

Pertinent to this appeal, these documents do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are an official document of the appropriate United States service department or NPRC.  Accordingly, they 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 FVEC Fund.  See 38 C.F.R. § 3.203.  The RO, however, sent copies of the aforementioned documents to the NPRC for further investigation and verification.  In September 2010, October 2011, and December 2011, the NPRC again 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.

Significantly, the appellant has, at no time during this appeal, submitted a Certification of Release or Discharge from Active Duty (DD Form 214) or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  The NPRC has duly considered the appellant's application for VA benefits and repeatedly certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board notes that this verification is binding on VA such that VA has no authority to change or amend the finding.  See Duro v. Derwinski, 2 Vet App. 530, 532 (1992).  See also Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify claimed service, applicant's only recourse lies with the relevant service department, not VA).  Moreover, recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits 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 foregoing, the Board concludes that the appellant had no qualifying service and, as such, does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Accordingly, his claim for benefits must be denied.


ORDER

Entitlement to the one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs