Citation Nr: 1318930	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  11-26 008	)	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. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel





INTRODUCTION

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

Following certification of the appeal to the Board, in March 2013, the appellant submitted new evidence to VA, along with a waiver of initial RO review of such evidence.  Therefore, it is included in the record for appellate consideration.  See 38 C.F.R. § 20.1304(c) (2012).  

The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. 

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

In August 2009, and again in September 2010, 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 Armed Forces of the United States. 


CONCLUSION OF LAW

The criteria for obtaining 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. 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

Under the American Recovery and Reinvestment 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 in the amount of either $9,000.00 for non-United States citizens, or $15,000.00 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 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 that 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 (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 reflected in his March 2009 claim, the appellant contends that he served in World War II from February 1943 to January 1946 in the recognized guerrilla 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.  

Specifically, the Veteran asserts that he served in the Anderson Guerilla Squadron 409 during this period. 

He has not submitted a Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer or Discharge, or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a).  Rather, the appellant has submitted documents of certification of his service, dated in July 2010 and February 2011, respectively, from the General Headquarters of the Armed Forces of the Philippines, Office of the Adjutant General, and the Philippine Veterans Affairs Office, indicating that he is a recognized guerilla and veteran of World War II.  He also submitted copies of various identification cards from the Philippine Veterans Affairs Office and Veterans Federation of the Philippines indicating that he was a World War II veteran, as well evidence that he receives a pension as a Philippine veteran and guerrilla during World War II.  He has further submitted a personnel record of the Army of the Philippines indicating that the enlisted in March 1945 with the Anderson Squadron 409 and a document indicating discharge from the Army of the Philippines. 

However, these documents 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.  As such, none of these documents may 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 38 C.F.R. § 3.203(a)(1).  

The Veteran also submitted what appeared to be a copy of a service record, W.D., A.G.O. Form No. 24, indicating that he had served in the Squadron 409 Anderson Unit beginning March 1, 1945.  However, in August 2009, and again in February 2010, the RO submitted the appellant's pertinent information to the NPRC, including his name, date of birth, place of birth, claimed units of service, claimed dates of service, and the names of his parents and spouse.  

The NPRC certified in August 2009 again in September 2010, 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, after considering the evidence noted above submitted by the appellant in support of his claim, including the apparent copy of the W.D., A.G.O. Form No. 24.  The NPRC certified that the appellant had no recognized service despite the RO's notation in its requests that the appellant's name was listed in the Reconstructed Recognized Guerrilla Roster maintained by the RO.  

Findings by a service department regarding certification of a person's service are binding on VA for purposes of establishing service in the United States Armed Forces.  See Soria v. Brown, 118 Fed. 3rd 747, 749 (Fed. Cir. 1997); Duro v. Derwinski, 2 Vet App. 530, 532 (1992).

Because the appellant had no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund are not met, and the claim must be denied. 

The Veterans Claims Assistance Act of 2000, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  However, the United States Court of Appeals for Veterans Claims has held that when the law as mandated by statute, and not the evidence, is dispositive of the claim, the above provisions are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002). 

Additionally, VA's General Counsel held in a precedential opinion that there is no duty to notify a claimant where the 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 and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim.  VAOPGCPREC 5-2004.  As there is no legal entitlement to the benefit claimed, there is no reasonable possibility that further notice or assistance would aid in substantiating this claim.  Thus, any deficiencies of notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the provisions regarding notice and assistance is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 

ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs