Citation Nr: 1318437 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-31 820 ) 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 H. Bunker, Associate Counsel INTRODUCTION This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Please also 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 Claimant 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 service requirements for eligibility to the one-time payment from the FVEC fund are not met. 38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for the Claimant's application for basic eligibility for the one-time payment from the FVEC Fund, the U. S. Court of Appeals for Veterans Claims (Court) has held that in cases where the claimant alleges recognized guerrilla service or service in the Philippine Army during World War II, VA is obligated to inform the claimant of the information or evidence necessary to prove the element of Veteran status. Palor v. Nicholson, 21 Vet. App. 325, 331 (2007) (as Veteran status is frequently a dispositive issue in claims filed by Philippine claimants, some tailoring of notice concerning proof of Veteran status is necessary in most, if not all, cases). To this end, a May 2010 letter informed the Claimant what was required to adjudicate his claim for entitlement to the one-time payment from the FVEC Fund. Also, in the September 2011 statement of the case (SOC), the RO explained that verification of military service was the responsibility of the NPRC and its findings were binding on VA. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Palor, 21 Vet. App. at 332 ("The Federal Circuit's decision in Soria recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for Veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Accordingly, the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim for a benefit to which the claimant is not entitled as a matter of law). The facts are not in dispute; instead, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to the type of service that qualifies an individual for eligibility for compensation under the FVEC Fund. VA's duties to notify and assist are thereby generally inapplicable. In Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008), the Federal Circuit Court held (albeit in the context of a claim for Dependency and Indemnity Compensation (DIC)), that where service department certification of a claimant's active service is required, a claimant is entitled to submit and receive consideration of new evidence concerning such service by the relevant service department. The Federal Circuit Court also held that it was a violation of VA's duty to assist not to request service department review of additional or new documents or evidence provided by a claimant concerning a Veteran's active service after the initial service department certification. See Capellan, 539 F.3d at 1380-81. The Federal Circuit Court further held that the correct interpretation of the governing statutes and regulations requires that a claimant's new evidence be submitted and considered in connection with a request for verification of service from the service department pursuant to 38 C.F.R. § 3.203(c). Id. The RO has requested service department certification of the Claimant's alleged active service, and on each occasion has submitted the documentation provided by the Claimant in the certification request, as expressly confirmed in the September 2011 SOC and the April 2013 supplemental SOC (SSOC). The most recent such certification request was completed in March 2013. The April 2013 SSOC clearly and expressly lists these documents in its index of evidence of record which was considered and included in the service department certification requests. The stipulations set out in Capellan have been met. II. Analysis Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain Philippine Veterans to be paid from the FVEC Fund to eligible persons. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For eligible persons who accept a payment from the FVEC Fund, the payment shall constitute a complete release of any claim against the United States by reason of that service. However, nothing in the act prohibits a person from receiving any benefit (including any 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 the Act. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). For payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II, VA 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 the Act, submitted a claim to VA for benefits under the act. The application for the claim shall contain the information and evidence VA requires. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). An eligible person is any person who 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 § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and was discharged or released from service under conditions other than dishonorable. American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (February 17, 2009). In cases for VA benefits where the requisite Veteran status is at issue, the relevant question is whether qualifying service is shown. Soria, supra. Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. 38 C.F.R. § 3.203(c) (2012), Duro, supra. Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA. Soria, supra. A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies the claimed service. 38 C.F.R. § 3.203 (2012); Soria, supra. In an April 2009 claim, the Claimant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of guerrilla service in the 66th Infantry. The RO requested verification of service by the applicable United States service department using all identified variations of the Claimant's name, place of birth, date of birth, service number, reported ranks, dates of service, and unit designations provided by the Claimant in his supporting documents. In November 2009 the NPRC responded that it needed an AGO PA Form 23 from the TAG-PA. This Form was requested from the Claimant in May 2010, but he did not respond with the requested form and his claim was denied. In August 2010 the Claimant submitted a certification from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General stating his military status was guerrilla. This information was forwarded to the NPRC in July 2011. In August 2011 the NPRC responded that no change was warranted in prior negative service certification. More clearly, that the Claimant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Consequently, the RO determined that the Claimant did not have the requisite service to establish eligibility for payment from the FVEC Fund and, thus, continued to deny his claim. During the course of this appeal that since has ensued, the Claimant has submitted additional documentation contesting the RO's decision and attesting to his service in the recognized guerillas. This includes his discharge orders, a roster from USAFIP North Luzon Camp Spencer with his name listed, and an additional certification in August 2011 from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General stating his military status was a recognized guerrilla. None of this additionally submitted documentation and lay evidence, however, qualifies as acceptable proof of service. 38 C.F.R. § 3.203 (2012). The evidence was not issued by the service department, nor does it contain the necessary information to establish entitlement to the benefit sought. Therefore, the 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 FVEC Fund. NPRC has considered the application for VA benefits and repeatedly has certified that he had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas. Most recently in January 2013, the NPRC was asked to re-verify service based on the Claimant's recent statements, an additional certification in August 2011 from the General Headquarters Armed Forces of the Philippines Office of the Adjutant General stating his military status was a recognized guerrilla, and a statement that the Claimant's name appeared on the Reconstructed Recognized Guerrilla Roster maintained by the VARO Manila. Despite the evidence, in March 2013 the NPRC found no change warranted in the prior negative certification of service. The Board is bound by that certification. Capellan, supra (if the service department does not verify the applicant's claimed service, the applicant's only recourse lies within the service department, not with VA). The Claimant does not meet the requisite legal requirements for obtaining a one-time payment from the FVEC Fund. Therefore, his claim for benefits must be denied. The Board is without authority to grant the claim on an equitable basis and must follow the specific provisions of law. 38 U.S.C.A. § 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). ORDER The Claimant is ineligible for the one-time payment from the FVEC Fund, so the appeal is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs