Citation Nr: 1318426	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  10-45 777	)	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, J.D. and K.C.


ATTORNEY FOR THE BOARD

S. Coyle, Counsel





INTRODUCTION

This matter comes before the Board of Veterans Appeals (Board) from a May 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund. 

A hearing on this matter was held before the undersigned Veterans Law Judge (VLJ) sitting at the RO on February 6, 2013.  Although the appellant also requested a hearing before a Decision Review Officer (DRO) at the RO, he withdrew that request for a hearing in December 2011 and instead participated in an informal conference with the DRO.   The hearing transcript and informal conference notes have been included with the claims folder or the appellant's electronic file.

The 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 service department 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 during World War II.


CONCLUSION OF LAW

The criteria to establish entitlement to payment from the Filipino Veterans Equity Compensation Fund are not met.  38 U.S.C.A. §§ 101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009). 
	




REASONS AND BASES FOR FINDING AND CONCLUSION

VA's 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.  

In any event, an October 2011 letter advised the appellant of the evidence and information necessary to substantiate his claim, as well as his and VA's respective responsibilities in obtaining evidence and information.  While the notice letter was issued after the May 2009 decision, the matter was readjudicated in September 2012.  Additionally, in response to documents submitted by the appellant, the RO obtained verification of his service through the National Personnel Records Center (NPRC) in October 2010, April 2012 and July 2012.  Finally, the appellant was afforded a hearing before the Board in which he presented oral argument in support of his claim.  A presiding VLJ is required to fully explain the issues and suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The hearing transcript reflects that the issue was identified to the claimant, and that he was advised of the need to submit evidence of qualifying service that could be verified by the NPRC. The hearing focused on the elements necessary to substantiate the claim, and the appellant provided testimony relevant to those elements.  As such, the Board finds the appellant is not prejudiced by a decision at this time. 



Analysis

The appellant asserts that he is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund as a member of a recognized guerilla force in the service of the Armed Forces of the United States during World War II.  

During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt.  Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those who served in the Philippine Islands during World War II did not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002).

The benefit at issue here originated on February 17, 2009 with the American Recovery and Reinvestment Act (the Act), to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which provides one-time payments to eligible persons.  Pub. L. No. 111-5,  § 1002, 123 Stat. 115 (2009).

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; and any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  The claimant must have been discharged or released from 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 in a manner consistent with applicable provisions of Title 38 of the United States Code, and other provisions of law, and shall apply the definitions in 38 U.S.C.A. § 101 in the administration of the provisions, except to the extent otherwise provided.  Pub. L. No. 111-5, § 1002, 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 qualifying 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 VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b) (2012). 

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

Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997).  Where the service department does not certify the claimant's alleged qualifying service, VA cannot consider a claim for benefits based on that service.  Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997).

By way of background, the appellant filed a claim for service-connected disability benefits in December 1972.  In August 1973, the RO sent the appellant's information to the NPRC for verification of military service.  In February 1974, the NPRC indicated 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 was notified of this decision later that month.

In March 2007, the RO received the appellant's application for a one-time payment from the Filipino Veterans Equity Compensation Fund.  In support of his claim, the appellant submitted a passbook from Development Bank of the Philippines; variously dated confirmations of his recognized guerrilla service from the Republic of the Philippines; an order of payment from the Philippines Veterans Claims Settlement Staff; records from the Philippine Veterans Affairs Office; and identification cards.  

In May 2009, the RO informed the appellant that his claim was denied, citing the February 1974 response from NPRC as an indication 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 disagreed with that determination in July 2009 and this appeal ensued. 

In July 2010, the RO sent the appellant's information to the NPRC for re-verification of military service.  In October 2010, the NPRC again indicated that the appellant had no qualifying service.  The appellant then submitted evidence that his last name may have been misspelled on his military records, and provided an affidavit from two individuals attesting to alternate spellings of his last name.  In October 2011, the RO renewed its request to the NPRC for verification of military service, providing all of the alternative spellings of the appellant's last name.  The RO also provided newly submitted records from the Philippine Veterans Affairs Office and additional confirmations of military service.  However, in April 2012, the NPRC indicated that there was still no evidence that the appellant had service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 

In May 2012, the appellant submitted a document from his recognized guerrilla battalion, as well as what appears to be a sworn statement to obey the "laws of the United States Army," the President of the United States, and other U.S. superior officers, and to protect and defend the United States.  The appellant's signature does not appear on this statement, which appears to have been issued by the appellant's guerrilla commanders, and not by any authority of the United States.  These documents were submitted to the NPRC in June 2012; however, in July 2012, the NPRC stated that it was still unable to verify any service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. 

On review, none of the submitted documentation and lay evidence qualifies as acceptable proof of service under the provisions of 38 C.F.R. § 3.203.  The evidence submitted was not issued by the a United States Armed Forces service department, nor does it contain the necessary information to establish entitlement to the benefit sought.  Moreover, none of the aforementioned documents is a United States service department document establishing qualifying service.  Therefore, this evidence may not be accepted as verification of service for the purpose of determining eligibility for benefits administered by VA, including the one-time payment from the Filipino Veterans Equity Compensation Fund. 

The NPRC has duly considered the appellant's application for VA benefits and has repeatedly certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the United States Armed Forces under the authority of a commander of the United States Army.  The Board is bound by those certifications.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify the applicant's claimed service, the applicant's only recourse lies with the service department, not with VA).

For the foregoing reasons, the appellant does not have the requisite service to qualify for a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, his claim for benefits must be denied. 

The Board is sympathetic to the appellant, and does not question the sincerity of his belief that he is entitled to this payment.  However, a determination on whether the service department made any type of error in this regard is not within the Board's jurisdiction, and the matter must be resolved with the service department and not VA.  The Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  This case is decided based on its application of this law to the pertinent facts.  Owings v. Brown, 8 Vet. App. 17 (1995); Kelly v. Derwinski, 3 Vet. App. 171 (1992) (Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant.

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


ORDER



Department of Veterans Affairs