Citation Nr: 1318268 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 12-05 323 ) 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. WITNESSES AT HEARING ON APPEAL Appellant and his son, and J. R. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant had no legal entitlement to a one-time payment from the FVEC fund. In February 2013, the appellant testified at a Travel Board hearing at the RO. 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 United States Armed Forces. CONCLUSION OF LAW The criteria for eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2009); 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 Duty 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 American Recovery and Reinvestment Act authorized a one-time benefit 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). 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 (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, see 38 C.F.R. § 3.203(c), the service department's decision on such matters is conclusive and binding on the VA. 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 their service. Soria, 118 F.3d at 749. The appellant claims that he is entitled to a one-time payment from the FVEC fund. He essentially claims that he had recognized guerilla service from November 1943 to January 1946. He also maintains that he had service with the Philippine Scouts. A January 1946 Affidavit for Philippine Army Personnel noted that the appellant reported that he had guerilla service. The appellant indicated that he was presently serving with B Company, 1st Prov. Batallion, Pangasinan Regiment, APO-70. He indicated that he was inducted in November 1943 and that he served with the 5th Squadron, 2nd Pangasinan Regiment from December 1943 to April 1945. He stated that he served with B Company, 1st Batallion, 2nd Pangasinan Regiment, attached to the 632nd TD Batallion, in April 1945. The appellant further reported that he served with the 148th Infantry, 37th Division, from April 1945 to May 1945, and with the 123rd Infantry, 33rd Division, from May 1945 to July 1945. He also indicated that he served with the 127th Infantry, 32nd Division, from July 1945 to September 1945, and with B Company, 1st Batallion, 2nd Pangasinan Regiment, attached to the United States Armed Forces in the Philippines, Northern Luzon (USAFIP-NL), from September 1945 to January 1946. The appellant reported that he was a private. A February 1991 Application for Old Age Pension, with the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, indicated that the appellant reported that he had guerilla service with E Company, 2nd Batallion, 1st Pangasinan Regiment, "PYMD ECLGA." The appellant stated that he was discharged in January 1946. He reported that his serial number was [redacted], and that he was born on December [redacted], 1924. A certification, with an illegible date, from Camp General Emilio Aguinaldo noted that the appellant served with E Company, 2nd Batallion, Regiment "PTMD ECLGA", 1st Pangasinan Regiment. His military status was listed as recognized guerilla service. It was reported that the appellant was paid in arrears as a private from April 1943 to March 1945, and that he was currently paid as a private from April 1945 to June 1945 and from October 1945 to November 1945. In February 2009, the Veteran filed his claim for legal entitlement to a one-time payment from the FVEC fund. He reported that he had recognized guerilla service from November 1943 to January 1946. He stated that he served with E Company, 2nd Batallion. The appellant listed the names of his mother and father, as well as the name of his spouse. He indicated that his date of birth was July [redacted], 1921, and that his place of birth was Malasiqui, Pangasinan, Philippines. The appellant reported that his service number was [redacted]. In April 2009, the RO requested verification of the appellant's service from the National Personnel Record Center. The RO reported that the appellant alleged that he had recognized guerilla service from November 1943 to January 1946, and that he served with E Company, 2nd Batallion. His date of birth was listed as July [redacted], 1991, and his place of birth was listed as Malasiqui, Pangasinan, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In a May 2009 response to the April 2009 request for verification of the appellant's service, the NPRC 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. In an August 2009 statement, the appellant reported that he was inducted in 1943 and that he had continuous duty up to 1945. He indicated that he later joined the Philippine Scouts from 1946 to 1949 and that he was stationed in Guam. In a January 2010 statement, the appellant reported that he had recognized guerilla service, as well as service with the Philippine Scouts, from April 1943 to November 1945. He stated that he served with E Company, 2nd Batallion, 1st Regiment, "PTMD ECLGA." His listed service numbers of [redacted] and [redacted]. The appellant also listed the names of his mother and father, as well as his spouse. He indicated that his date of birth was December [redacted], 1924, and that his place of birth was Malasiqui, Pangasinan, Philippines. An April 2010 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, noted that the appellant served with the 5th Squadron, 2nd Pangasinan Regiment (F-23). It was reported that the appellant was inducted in November 1943 and that he was discharged in January 1946. The Veteran's date of birth was listed as November [redacted], 1924, and his place of birth was listed as Malasiqui, Pangasinan, Philippines. The appellant's military status was listed as a guerilla. In May 2010, the RO requested verification of the appellant's service from the National Personnel Record Center. The RO reported that the appellant alleged that he had recognized guerilla service from November 1943 to January 1946, and that he served with E Company, 2nd Batallion, Pangasinan Regiment, "PYMD ECLGA." His date of birth was listed as December [redacted], 1924, and his place of birth was listed as Malasiqui, Pangasinan, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In an August 2010 response to the May 2010 request for verification of the appellant's service, the NPRC 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. In September 2010, the RO requested verification of the appellant's alleged service for the period from July 1946 to July 1949 (in the Philippine Scouts) from the NPRC. In September 2010, the RO also requested verification of the appellant's alleged recognized guerilla service from the National Personnel Record Center. The RO reported that the appellant alleged that he had recognized guerilla service from November 1943 to January 1946, and that he served with B Company, 1st Prov. Batallion, Pangasinan Regiment, APO-70; 5th Squadron, 2nd Pangasinan Regiment (F-23); E Company, 2nd Batallion, 1st Pangasinan Regiment "PYMD ECLGA." His date of birth was listed as December [redacted], 1924, and his place of birth was listed as Malasiqui, Pangasinan, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In an October 2010 response to the September 2010 request for verification of the appellant's alleged guerilla service, the NPRC 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. In an October 2010 response to the September 2010 request for verification of the appellant's alleged service from July 1946 to July 1949 (in the Philippine Scouts), the NPRC indicated that any such records were destroyed in the 1973 fire at the NPRC. The NPRC reported that a record could not be identified based on the information provided. In a November 2010 Questionnaire about Military Service, the appellant reported that he had service in the United States Army from July 1946 to April 1949. He stated that he served with the 56th Engineer Company, Company C, 2nd Batallion, "Marbo" Command. He maintained that his serial number was PS [redacted]. The appellant also indicated that his birth date was December [redacted], 1924. In December 2010 and March 2011, the RO requested verification of the appellant's alleged service for the period from July 1946 to April 1949 (in the Philippine Scouts) from the NPRC. The RO reported that the appellant alleged that he served with the 56th Engineer Company, Company C, 2nd Batallion, "Marbo" Command. In an April 2011 response to the December 2010 and March 2011 requests for verification of the appellant's alleged service from July 1946 to April 1949 (in the Philippine Scouts), the NPRC indicated that any such records were destroyed in the 1973 fire at the NPRC. The NPRC reported that it was still unable to locate a record for the appellant, and that, therefore, it could not provide verification of the appellant's alleged service. In April 2011, the RO again requested verification of the appellant's alleged recognized guerilla service from the National Personnel Record Center. The RO reported that the appellant alleged that he had recognized guerilla service from November 1943 to January 1946, and that he served with B Company, 1st Prov. Batallion, Pangasinan Regiment, APO-70; 5th Squadron, 2nd Pangasinan Regiment (F-23); E Company, 2nd Batallion, 1st Pangasinan Regiment "PYMD ECLGA." His date of birth was listed as November [redacted], 1924 or December [redacted], 1924, and his place of birth was listed as Malasiqui, Pangasinan, Philippines. The names of the appellant's mother and father, as well as his spouse, were all listed. The RO reported that the appellant served under the name of [redacted], and that an additional name under which the appellant may have served under was [redacted]. The appellant's service number was listed as [redacted]. The RO indicated that the appellant's name was not listed in the Reconstructed Recognized Guerilla Roster maintained at the RO. In a May 2011 response to the April 2011 request for verification of the appellant's alleged guerilla service, the NPRC 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. In November 2012 statement, the appellant reported that he had recognized guerilla service from November 1943 to January 1946, and that he served with the Philippine Scouts from July 1946 to April 1949. He stated that he served with B Company, 1st Prov. Batallion, Pangasinan Regiment, and with E Company, 2nd Batallion, 1st Pangasinan Regiment, "PYMD." His listed a service number of [redacted] for his alleged recognized guerilla service. The appellant also listed the names of his mother and father, as well as his spouse. He indicated that his date of birth was December [redacted], 1924, and that his place of birth was Malasiqui, Pangasinan, Philippines. At the February 2012 Board hearing, the appellant testified that he served in the Philippine Scouts from 1946 to "1948". He also stated that he served with the United States Armed Forces prior to 1946. The appellant indicated that the information that was sent to the NPRC was correct. The Board finds that the appellant does not legally qualify for a one-time payment from the FVEC fund. As discussed above, the NPRC has specifically certified, on numerous occasions, that 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 light of the above, the January 1946 Affidavit for Philippine Army Personnel; the certification, with an illegible date, from Camp General Emilio Aguinaldo; and the April 2010 certification from the Armed Forces of the Philippines, General Headquarters, Office of the Adjutant General, as well as the February 1991 Application for Old Age Pension, with the Republic of the Philippines, Department of National Defense, Philippine Veterans Affairs Office, all submitted by the appellant, fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as the certification is not an official document of the appropriate United States service department, and is without the official seal. The documents, therefore, are not acceptable as verification of the appellant's service for the purpose of receiving VA benefits. Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). In Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that pursuant to both 38 C.F.R. § 3.203(c) and the VA Secretary's statutory duty to assist (as set forth in 38 U.S.C.A. § 5103A), new evidence submitted by a claimant in support of a request for verification of service from the service department must be submitted to the service department for review. The Board notes, however, that in this case, any new evidence submitted by the appellant is duplicative of his contentions of service (i.e., recognized guerilla service and service in the Philippine Scouts) previously considered by the service department (NPRC). In multiple searches following additional information submitted by the appellant as to his alleged recognized guerilla service, the NPRC has specifically indicated that the appellant did not have the necessary service in this matter. The NPRC also specifically reported that it was unable to locate any record for the appellant, and that, therefore, it could not provide verification of the appellant's alleged service in the Philippine Scouts. The appellant's plight is acknowledged. In this case however, the service department has determined 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. 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). Because the appellant's service does not meet the criteria described, the appellant 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 Entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs