Citation Nr: 1318626	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  11-23 855A	)	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 son


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 





INTRODUCTION

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  

In connection with his appeal, the appellant and his son testified at a Board hearing before the undersigned Veterans Law Judge at the RO in January 2013.  A transcript of that hearing has been associated with the claims file.

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 


FINDING OF FACT

The National Personnel Records Center (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.  


CONCLUSION OF LAW

The service requirements for eligibility to a one-time payment from the FVEC fund are not met.  38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2012); 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 FINDING AND CONCLUSION

The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002).  VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004).  

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 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 v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  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 v. Derwinski, 2 Vet. App. 530 (1992).  Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies with the relevant service department, not with VA.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  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 v. Brown, 118 F.3d 747 (Fed. Cir. 1997).

In a timely March 2009 claim, the appellant provided his identifying information and contended that he was eligible for a one-time payment from the FVEC fund as a result of service in L Company, 3rd Battalion, TARLAC Regiment from May 10, 1944, to March 2, 1945.  

The RO has noted that the appellant's name is not on the Reconstructed Recognized Guerilla Roster maintained at the RO.  The RO requested verification of service by the applicable United States service department using the spelling of the appellant's full name, service number, place and date of birth, dates of service, and unit designation provided by the appellant in his supporting documents.  In March 2010 and June 2011, the NPRC responded 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 Board concludes that the appellant does not qualify for a one-time payment form the FVEC fund as a matter of law.  NPRC has specifically 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.  NPRC made that certification after considering the various information provided by the appellant.

The appellant did not submit a DD Form 214, a Certification of Release or Discharge from Active Duty, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1) (2012).  In light of the above, the documents submitted by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department and they do not carry an 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).

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).  As 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

The appellant is not eligible for a one-time payment from the Filipino Veterans Equity Compensation Fund and the claim is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs