Citation Nr: 1318762 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 11-25 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The appellant contends that he served with the recognized guerillas in the Philippines and served with the Special or New Philippine Scouts, in the service of the United States Armed Forces, from September 1942 through November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In May 2013, subsequent to an April 2013 supplemental statement of the case, the RO received a follow-up statement from the National Personal Records Center (NPRC). Ordinarily additional received after issuance of the most recent statement of the case or supplemtnatl statement of the case would warrant remand to the RO for initial consideration unless the appellant waives intial RO consideration of the evidence. See 38 C.F.R. §§ 19.31 , 19.37, 20.800, 20.1304(c). However, the newly received evidence is essentially duplicativie of information previously received from NPRC and considered by the RO. In fact, the information contained contained in the document received in May 2013 is identical to the information contained in an earlier documented received in April 2013. Accordingly, a remand is not necessary. 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 appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the service of the Armed Forces of the United States. CONCLUSION OF LAW The criteria for entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund have not been met. 38 U.S.C.A. § 501(a) (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The question before the Board is whether the appellant had qualifying service to establish eligibility for a one-time payment of benefits from the Filipino Veterans Equity Compensation Fund. The record includes service department verification of the appellant's service. Because qualifying service and how it may be established are governed by laws and regulations, and, because the service department's certification is binding, the Board's review is limited to interpreting the pertinent laws and regulations. Where the interpretation of the law is dispositive of the appeal, as in this case, neither the duty to notify nor the duty to assist provisions of the VCAA are applicable. De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Analysis Under the American Recovery and Reinvestment Act (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 February 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. 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 (c)(1) of the Act 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 (c)(2) provides that if an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. 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. As noted previously, the essential question involved in this case is whether the appellant has the requisite military service to be eligible for payment from the Filipino Veterans Equity Compensation Fund. The appellant applied for benefits under the Filipino Veterans Equity Compensation Fund in December 2009 and enclosed multiple documents in support of his claim. He indicated that he served in the Walter Cushing Guerilla Unit. In February 2010, the RO requested verification of service from the National Personnel Records Center (NPRC) in St. Louis, Missouri, indicating that the appellant was not listed in the Reconstructed Recognized Guerilla Roster (RRGR) maintained in the Manila RO. The NPRC responded in February 2010 that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces. The appellant submitted additional documents including an Oath of Office and Certificate of Service from the Walter Cushing Guerilla Unit. In July 2010 and July 2011, the RO sent new requests for verification of service which included the appellant's claim that he served in the Special or New Philippine Scouts. The NPRC replied in July 2010 and July 2011 that they could not identify a record based on the information provided. Under the regulations, for the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits, VA may accept evidence of service submitted by a claimant, such as a DD Form 214, 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). In this case, the appellant did not submit any of the documents prescribed under 38 C.F.R. § 3.203(a) (1). Moreover, the documents provided by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service because they are not official documents of the appropriate United States service department, but rather, are documents from the Philippine government. As such, those documents 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 Filipino Veterans Equity Compensation Fund. See, Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The Board concludes that the appellant does not qualify for a one-time payment form the Filipino Veterans Equity Compensation Fund as a matter of law. As discussed above, on two separate occasions, the NPRC has specifically certified that the appellant had no service as a member of the Philippine Commonwealth Army or recognized guerrillas in the service of the United States Armed Forces. The Board need not address whether the appellant performed military service in the Philippine Army but only whether any service was recognized by the U.S. service department as having been performed in service to the United States. In this case, the NPRC, a division of the National Archives and Record Administration, holds the archived records of military service for the applicable service department. NPRC 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 Filipino Veterans Equity Compensation Fund, and the claim must be denied based upon a lack of entitlement under the law. ORDER Legal entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs